02 STATE WATER RESOURCES CONTROL BOARD
04 PUBLIC HEARING
07 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS
07 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY
08 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO
08 THE REQUIREMENTS OF WATER RIGHT DECISION 1631
14 HELD AT:
15 STATE WATER RESOURCES CONTROL BOARD
15 PAUL BONDERSON BUILDING
16 901 P STREET, FIRST FLOOR HEARING ROOM
16 SACRAMENTO, CALIFORNIA
19 THURSDAY, JANUARY 30, 1997
19 9:00 A.M.
24 Reported by: ESTHER F. WIATRE
25 CSR NO. 1564
01 BOARD MEMBERS:
02 JOHN CAFFREY, CHAIRMAN
03 JOHN W. BROWN
03 JAMES STUBCHAER (Not present.)
04 MARY JANE FORSTER
04 MARC DEL PIERO (Present a.m. only)
05 STAFF MEMBERS:
06 JAMES CANADAY, ENVIRONMENTAL SPECIALIST
07 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF
07 MELANIE COLLINS, STAFF ENGINEER
09 DAN FRINK
10 LOS ANGELES DEPARTMENT OF WATER AND POWER:
11 PANEL MEMBERS:
12 PETER KAVOUNAS
13 BRIAN TILLEMANS
13 JAMES R. PERRAULT
14 BRIAN N. WHITE
15 KRONICK MOSKOVITZ TIEDEMANN & GIRARD
15 400 Capitol Mall, 27th Floor
16 Sacramento, California 95814
16 BY: THOMAS W. BIRMINGHAM, ESQ.
17 JANET GOLDSMITH, ESQ.
18 UNITED STATES FOREST SERVICE:
19 UNITED STATES DEPARTMENT OF AGRICULTURE
20 OFFICE OF GENERAL COUNSEL
20 33 New Montgomery, 17th Floor
21 San Francisco, California 94105
21 BY: JACK GIPSMAN, ESQ.
23 ROGER PORTER
02 BUREAU OF LAND MANAGEMENT:
03 UNITED STATES DEPARTMENT OF THE INTERIOR
03 BUREAU OF LAND MANAGEMENT
04 BISHOP RESOURCE AREA
04 785 North Main Street, Suite E
05 Bishop, California 93514
05 BY: TERRY L. RUSSI
06 PEOPLE FOR MONO BASIN PRESERVATION:
07 KATHLEEN MALONEY BELLOMO
08 P.O. Box 201
08 Lee Vining, California 93541
09 ARCULARIUS RANCH:
10 FRANK HASELTON, LSA
11 1 Park Plaza, Suite 500
11 Irvine, California 92610
12 RICHARD RIDENHOUR:
13 RICHARD RIDENHOUR
14 CALIFORNIA TROUT, INC.:
15 NATURAL HERITAGE INSTITUTE
16 114 Sansome Street, Suite 1200
16 San Francisco, California 94014
17 BY: RICHARD ROOS-COLLINS, ESQ.
18 CALIFORNIA DEPARTMENT OF FISH AND GAME:
19 NANCEE MURRAY, ESQ.
20 1416 Ninth Street
20 Sacramento, California 95814
21 McDONOUGH HOLLAND & ALLEN
22 555 Capitol Mall, Ninth Floor
22 Sacramento, California 95814
23 BY: VIRGINIA A. CAHILL, ESQ.
02 CALIFORNIA STATE LANDS COMMISSION:
02 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
03 MARY J. SCOONOVER, ESQ.
04 1300 I Street
04 Sacramento, California 95814
05 MICHAEL VALENTINE
06 NATIONAL AUDUBON SOCIETY:
07 MONO LAKE COMMITTEE:
08 MORRISON & FOERSTER
08 425 Market Street
09 San Francisco, California
09 BY: F. BRUCE DODGE, ESQ.
10 HEIDE HOPKINS
11 GREG REISE
11 PETER VORSTER
03 LOS ANGELES DEPARTMENT OF WATER AND POWER
04 (WATERFOWL HABITAT RESTORATION PANEL)
06 BY MR. DODGE 622
06 BY BOARD STAFF 650
07 BY BOARD MEMBERS 669
08 REDIRECT EXAMINATION
09 BY MR. BIRMINGHAM 672
10 RECROSS EXAMINATION
11 BY MS. SCOONOVER 693
11 BY MR. DODGE 697
12 BY BOARD STAFF 699
13 UNITED STATES FOREST SERVICE
14 (ROGER PORTER)
15 DIRECT EXAMINATION
16 BY MR. GIPSMAN 703
18 BY MR. BIRMINGHAM 723
19 BY MS. BELLOMO 735
19 BY MR. ROOS-COLLINS 784
20 BY MS. MURRAY 787
20 BY MS. SCOONOVER 790
21 BY MR. DODGE 792
21 BY BOARD STAFF 797
22 BY BOARD MEMBERS 800
03 BUREAU OF LAND MANAGEMENT
04 (TERRY RUSSI)
05 DIRECTION TESTIMONY
06 BY MR. RUSSI 806
08 BY MR. BIRMINGHAM 813
08 BY MS. BELLOMO 814
09 BY MR. ROOS-COLLINS 834
12 AFTERNOON SESSION 703
01 SACRAMENTO, CALIFORNIA
02 THURSDAY, JANUARY 30, 1997
04 CHAIRMAN CAFFREY: Good morning, again, and welcome. I
05 will resume the hearing. Before we proceed with the
06 cross-examination of the waterfowl panel, I see Ms. Bellomo
07 has risen.
08 Do you wish to address the Board?
09 Good morning, welcome.
10 MS. BELLOMO: Thank you.
11 Yes, Mr. Chairman and Members of the Board. I have a
12 procedural matter that I want to raise this morning.
13 Because scheduling has become an issue, I thought I should
14 raise it now because the outcome of your ruling on this
15 procedural ruling could affect the scheduling.
16 I wanted to bring it to the attention of the Water
17 Board that after the extension of time was granted for the
18 parties to submit their testimony and the Board's rulings
19 specifically ordered that or perhaps came from Mr. Anton, I
20 don't know who issued the notice, specifically ordered that
21 all parties were to make sure that testimony was delivered
22 to the other parties by 5:00 p.m. on Friday, the 17th of
24 Several parties did not deliver their testimony to the
25 people from Mono Basin Preservation, which resulted in some
01 significant prejudice to us. We have not received the
02 testimony on the timely basis. And, specifically, we did
03 not receive the testimony of the State Lands Commission, the
04 State Department of Parks and Recreation until the following
05 Tuesday, one week prior to the hearing. It was due on
06 Friday. We received it on a Tuesday.
07 The prejudice to us was that, not only did we know that
08 Mr. Stine's testimony was going to be a linchpin of many
09 other people's testimony, but that was a three-day weekend
10 where we had arranged to have members of the community
11 waiting to read the testimony. We waited Friday, and it
12 didn't come. We waited Saturday, and it didn't come. We
13 knew it wouldn't come Sunday. We waited Monday, and it
14 didn't come. On Tuesday, when everyone had returned to
15 their employment, Tuesday afternoon, we received the
17 We are very disturbed by this because we made Herculean
18 effort in after hours from our jobs to get our testimony
19 served on the parties on a timely basis, so that it was sent
20 overnight mail Wednesday because there was guaranteed
21 overnight mail delivery from Mono County. But everyone
22 received our testimony on time. With far less resources, we
23 succeeded in doing this.
24 We appreciate the fact that some of the parties, two of
25 the parties, contacted us to ask would it be okay if we get
01 their testimony late. Mono Lake Committee managed to have
02 someone drive from Sacramento and deliver it to our home by
03 8:00. I think it was on Friday evening. It was
04 appreciated. We heard nothing from the State Lands
05 Commission and State Parks and Recreation. We had no one to
06 contact over the weekend. I don't know counsel for -- know
07 how to reach counsel for that agency. Plus, it wasn't our
09 So I'm, basically, observing that in some form the
10 proper sanction of this would be exclusion of the testimony
11 of the parties that did not follow the procedural
12 requirement set out by the Board. I am not familiar with
13 your rules, and I don't know what you consider to be the
14 appropriate sanction in this situation that I am bringing to
15 your attention.
16 CHAIRMAN CAFFREY: Well, thank you for that.
17 Is this a problem for any of the other parties?
18 I know that there has been, or I heard, there has been
19 some difficulty sometimes with the weather and getting
20 things over to -- getting across on the Sierras, from the
21 eastern to the western side, so to speak, with mail or
22 special delivery.
23 Ms. Scoonover, did you have something that you wanted
24 to add before I decide?
25 MS. SCOONOVER: Yes.
01 Mr. Caffrey, Members of the Board, this is the first
02 that we have heard that the testimony did not arrive within
03 the required time limit. I have no idea what the problem
04 was. I will certainly look into it. I apologize to Ms.
05 Bellomo and People for Mono Basin. It was not out intent to
06 delay. There have been problems in the past. There are
07 some testimony, some exhibits, that we sent by overnight
08 mail to the Mono Lake, to the State Reserve during, the
09 course of hearing two years ago that still hasn't arrived.
10 It is not unusual. I thought I had remedied the problem by
11 switching overnight couriers. I don't know what the problem
12 is, but I will certainly look into it. I apologize.
13 CHAIRMAN CAFFREY: Appreciate your comments. I will
14 tell you what I am inclined to do. As you know, Ms.
15 Bellomo, we are extending the number of days that we are
16 going to be about this very important subject. How many
17 days again was it that you -- how many days late actually is
18 your --
19 MS. BELLOMO: It arrived on Tuesday at the end of the
20 day, and it was due on Friday.
21 CHAIRMAN CAFFREY: You missed the benefit of a
22 three-day weekend when your livelihood takes you elsewhere.
23 MS. SCOONOVER: Mr. Caffrey, I also believe there is
24 no possible way our witnesses will be heard today.
25 CHAIRMAN CAFFREY: I was going to say, I am not going
01 to exclude the exhibits or the evidence. But what we can
02 do, if we get to the point where this is a problem for you
03 in presenting your direct, and since nobody else seems to
04 have had this experience with this particular set of
05 exhibits, what we can do is move you a little bit further
06 down the list so that you would hopefully have had ample
08 What I will ask you to do, Ms. Bellomo, if we get to
09 you for direct today, which I doubt will be the case, but
10 you never now --
11 MR. FRINK: We should.
12 CHAIRMAN CAFFREY: You think we would? Maybe we ought
13 to just skip over you, if that is helpful, and take you up
14 in the two days that we'll be setting somewhere in,
15 probably, I am going to say at this point, in mid February,
17 MS. BELLOMO: I will be preparing for the Forest
18 Service, cross-examination of the Forest Service and the BLM
19 witnesses. They are really not in depth.
20 CHAIRMAN CAFFREY: I am talking about -- I don't see
21 them. Am I creating a problem here because I was talking
22 about direct. You are talking about you have a problem in
23 the cross-examination, as well.
24 MR. FRINK: Mr. Chairman.
25 CHAIRMAN CAFFREY: Mr. Frink.
01 MR. FRINK: The only reason that receiving the State
02 Lands' evidence would prejudice the People for Mono Basin
03 Preservation is that if they did have to proceed with the
04 cross-examination of those witnesses. I don't believe that
05 we are going to even reach the State Lands' witnesses
06 today. The direct evidence of all the parties is not
07 supposed to involve rebutting the direct evidence of the
08 other parties. The rebuttal phase of the hearing comes at a
09 later time. It could have been problem if we proceeded to
10 complete the hearing in three days. As it looks now, I
11 don't see how anyone is prejudiced by a week delay in
12 receiving evidence that isn't going to be presented for a
13 couple more weeks.
14 CHAIRMAN CAFFREY: Thank you, Mr. Frink.
15 We have Mr. Birmingham first and then Mr.
17 MR. BIRMINGHAM: My comments, I believe, are similar to
18 Mr. Frink's. I don't understand how the failure to receive
19 the State Lands Commission's testimony would prejudice the
20 People from Mono Basin Preservation with respect to the
21 presentation of their direct testimony. We are prepared to
22 go forward with our cross-examination with that testimony
23 and prepared for that.
24 CHAIRMAN CAFFREY: Let's go to Mr. Roos-Collins, and we
25 will come back to you, Ms. Bellomo.
01 Do you have something you want to add, sir?
02 MR. ROOS-COLLINS: Mr. Chairman, I concur with Mr.
03 Frink and Mr. Birmingham as an additional reason, to
04 maintain the current order for direct examination. But I
05 won't offer if the people do not wish to change that order.
06 CHAIRMAN CAFFREY: I am sorry, couldn't hear all of you
07 what said. Maybe my hearing is failing in my old age.
08 MR. ROOS-COLLINS: I agree with Mr. Frink and Mr.
09 Birmingham that we should preserve the order for
10 presentation of cases. The additional reason I have is that
11 one my witnesses is more than several hours away. I have
12 scheduled him to be available for late afternoon, in the
13 event that Cal Trout is called to present its case. If you
14 remove the people from the current order, it may be
15 difficult to get him here on time.
16 CHAIRMAN CAFFREY: Those are points well made.
17 MS. BELLOMO: Could I clarify something, Mr. Chairman?
18 CHAIRMAN CAFFREY: Yes, please.
19 MS. BELLOMO: It was not my intent to request that the
20 People from Mono Basin Preservation delay their presentation
21 today. In fact, we are very eager to go forward and would
22 be very disappointed if we haven't presented our case by the
23 end of day. I actually wanted to point out to the Board
24 that this serious problem had arisen and that it might be --
25 I don't know your rules. I don't know what kinds of
01 sanctions are appropriate.
02 I really feel that it is missing the point if people
03 don't understand that we were prejudiced by not being able
04 to have our group members review all of the testimony in
05 this proceeding before we came here. Because as Mr.
06 Kavounas pointed out yesterday, the DWP plan itself has --
07 the scientists have, you know, seems like scores of
08 references in the science testimony. It was very important
09 for us to find out what the State Lands Commission's final
10 position was.
11 Yes, I feel it did prejudice us or handicap us in even
12 our preparation of the cross-examination of the DWP's
13 witnesses. We didn't make issue of it yesterday, but I was
14 waiting to raise it until it was appropriate to State Lands
15 Commission. It wasn't the Department of Water and Power's
16 responsibility or problem. It did affect us.
17 CHAIRMAN CAFFREY: Mr. Birmingham.
18 MR. BIRMINGHAM: If, in fact, the People from Mono
19 Basin Preservation have been prejudiced in their
20 cross-examination of this panel, this panel can be available
21 later for further cross-examination by this particular
22 party. We don't want to deprive them of the opportunity for
23 meaningful cross-examination. We are happy to do that.
24 CHAIRMAN CAFFREY: I appreciate that gesture. I am
25 trying to bend over backwards, probably to the frustration
01 of a lot of the parties, to be fair to everybody. I am
02 certainly concerned about your rights and the fact that you
03 are here certainly in competition with your own situation,
04 and as a private party, it is difficult for you to travel.
05 But I think the arguments of Mr. Frink and Mr. Birmingham
06 and Mr. Roos-Collins and my earlier statement that we have
07 quite a time extension in this proceeding, that we go ahead,
08 that we note your concern, that we will accommodate you, if
09 further down the way in the process there appears to have
10 been an unfairness or unjustice.
11 We had a similar situation with Mr. Dodge a few days
12 ago, where he was concerned about not having enough time to
13 review some of the exhibits, and at that time I ruled that
14 we recognized it may be a little difficult, but we are going
15 to keep moving. I do appreciate your concern. Hopefully
16 the extension of time will help you out.
17 MS. BELLOMO: Thank you very much.
18 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo, for bringing
19 it to our attention.
20 With that, let's move to the cross-examination by Mr.
21 Dodge of the waterfowl panel.
22 Good morning, Mr. Dodge.
23 MR. DODGE: Good morning.
02 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE
03 BY MR. DODGE
04 MR. DODGE: Good morning, Mr. Kavounas.
05 MR. KAVOUNAS: Good morning, Mr. Dodge.
06 MR. DODGE: I have a few questions about your plan.
07 At Page 1 of your testimony, your waterfowl plan, you
08 talk about rewatering Rush Creek distributaries?
09 MR. KAVOUNAS: Yes, sir.
10 MR. DODGE: Is that still part of your plan?
11 MR. KAVOUNAS: Yes, sir.
12 MR. DODGE: At Page 92 of the scientists' plan, they
14 We envisioned that many depressional sites in
15 the bottomlands will be rewatered by
16 increasing the water table in the floodplain
17 through natural processes. However, periodic
18 (three-year intervals) assessment should be
19 conducted, and those secondary channels and
20 depressional areas that have not recovered
21 naturally should be evaluated from a
22 mechanical reopening to restore additional
23 waterfowl habitat. (Reading.)
24 Is that future evaluation part of your plan, sir?
25 MR. KAVOUNAS: Not explicitly so.
01 MR. DODGE: Would you be agreeable to making it part of
02 your plan?
03 MR. KAVOUNAS: Yes.
04 MR. DODGE: On Page 2 of your testimony, you talk about
05 the DeChambeau/County Ponds/Black Point part of the
06 proposal. As I understand your testimony, going forward on
07 that is conditional on outside funding?
08 MR. KAVOUNAS: That is right.
09 MR. DODGE: You say on Page 2:
10 It does not warrant the expense. (Reading.)
11 Would you agree with me that the scientists strongly
12 recommended going forward with this County Ponds project?
13 MR. KAVOUNAS: No.
14 MR. DODGE: At Page 90 of their report, the scientists
16 If completed the entire DeChambeau
17 Pond/County Pond complex can provide 45 acres
18 of semi-permanent or seasonal fresh water
19 wetlands, 22 acres of the wet seasonal
20 meadow, and 10 acres of riparian habitat for
21 waterfowl and other wildlife. Although
22 requiring active management, this habitat
23 complex will provide critical waterfowl
24 habitat to the Basin and mitigate for the
25 loss of fresh water and lagoonal habitat not
01 restored at the target lake level of 6392
02 feet. These projects would produce one of
03 the best waterfowl complexes in the Basin and
04 was highly recommend by Smith, Dom & Vestal.
05 A great diversity of waterfowl and shore bird
06 species would use this complex.
08 Now, among other things, the scientists talked about
09 this habitat as critical waterfowl habitat, one of the "best
10 waterfowl complexes in the basin."
11 Does that not seem like high praise to you?
12 MR. KAVOUNAS: No, sir. Can I explain?
13 MR. DODGE: I am sure Mr. Birmingham will ask you to do
14 that on cross-examination.
15 You indicated yesterday there were certain problems
16 with the DeChambeau Ponds, correct?
17 MR. KAVOUNAS: Yes, sir.
18 MR. DODGE: Do you understand that those problems are
19 being cured?
20 MR. KAVOUNAS: With the Phase I of the project?
21 MR. DODGE: Let me ask a different question.
22 Do you understand that the problem was that the ponds
23 were not holding water?
24 MR. KAVOUNAS: That is my understanding, yes.
25 MR. DODGE: Do you understand that is in the process of
01 being cured?
02 MR. KAVOUNAS: No, sir.
03 MR. DODGE: You don't.
04 If the problems were cured with the DeChambeau project,
05 would you be prepared to go ahead with the County Ponds
07 MR. KAVOUNAS: Once again, the success or failure of
08 DeChambeau Pond on the first phase was not particularly one
09 of our concerns in allowing or not -- excuse me, in
10 recommending or not, the DeChambeau/County Ponds/Black Point
12 MR. DODGE: If I understand that correctly, regardless
13 of whether DeChambeau is cured, your position would be that
14 going forward with County Ponds is dependent on outside
16 MR. KAVOUNAS: That is correct. What is also correct
17 is that the fact at the TAG meeting the parties asked us to
18 proceed with caution and phase it, not only from the
19 perspective of the excessive leakage, information that was
20 gathered from the first phase, but also from the perspective
21 of water supply.
22 I would like to also add that in the process that we
23 have gone through in the last year or so, it became more
24 clear, in my mind, that the water supply to the
25 DeChambeau/County Ponds complex is integrally tied with the
01 Mill and Wilson projects.
02 MR. DODGE: Haven't you heard Dr. Reid testify that
03 what we should is drill a test hole and try to get artesian
04 sources for that projects.
05 MR. KAVOUNAS: I believe it is in his written testimony
06 that he suggests we seek artesian flow. But I believe Dr.
07 Reid is not very qualified to speak on geohydrology matters.
08 I think if you were to evaluate the area, you would find the
09 artesian flow in that area would be impacted by surface
11 MR. DODGE: If we could get artesian flow to take care
12 of the County Ponds project, hypothetically, would DWP be
13 prepared to go forward with the County Ponds project and to
14 fund it?
15 MR. KAVOUNAS: If you can get sustainable artesian
16 flow, the Department's position at this point in time, is
17 still that the benefit that you get for spending a million
18 bucks is not warranted.
19 MR. DODGE: Not even by what is called the critical
20 waterfowl habitat?
21 MR. KAVOUNAS: That is the definition that is given in
22 their plan, yes. But I don't necessarily agree with that.
23 MR. DODGE: You don't necessarily agree that is
24 critical waterfowl habitat?
25 MR. KAVOUNAS: That's correct.
01 MR. DODGE: But yesterday you told us you were relying
02 on the three scientists for their expertise?
03 MR. KAVOUNAS: I didn't say I agree with that, with
04 their opinions. As a matter of fact, I believe I explicitly
05 stated that I did not agree with them, and the consultants I
06 relied, outside of the three scientists, did not necessarily
07 agree with the plan as proposed by the three scientists.
08 MR. DODGE: Let me ask you about Black Point scrapes.
09 Yesterday you were asked, I believe by Ms. Cahill, about
10 whether you proposed scrapes, and you indicated that due to
11 concerns by the State Lands Commission that you were not
12 proposing scrapes, correct?
13 MR. KAVOUNAS: That is correct. Maybe I didn't add to
14 that. I don't remember whether I did or not. As Ms.
15 Scoonover pointed out, mechanical means were not highly
16 valued in the guidelines that were identified early on in
17 the process. Scrapes were considered as such.
18 MR. DODGE: Do you recall what the scientists
19 recommended on scrapes?
20 MR. KAVOUNAS: Not specifically. I do recall that in
21 subsequent conversations, Dr. Drewien gave a lot of praise
22 to scrapes, but I am not sure they're as highly acclaimed in
23 their plan.
24 MR. DODGE: At Page 88, isn't it a fact, sir, that at
25 the bottom of Page 88, the scientists propose testing or
01 exploring the feasibility of two to five shallow scrapes?
02 MR. KAVOUNAS: Yes.
03 MR. DODGE: One was proposed at Black Point?
04 MR. KAVOUNAS: I believe that was a component of the
05 DeChambeau/County Ponds/Black Point project.
06 MR. DODGE: Black Point is not a State Lands Commission
07 property, is it?
08 MR. KAVOUNAS: I am not sure whether it is or not.
09 MR. DODGE: If it were not State Lands Commission
10 property, would you propose a feasibility of Black Point?
11 MR. KAVOUNAS: Yes. In the phased manner we were asked
12 to do so by the parties.
13 MR. DODGE: Let's go to Mill Creek, Page 1 of your
14 testimony -- I am sorry, Page 2 of your testimony. You say:
15 While the entire flow of Mill Creek, if returned
16 to its natural course, would benefit the entire
17 Mill Creek ecosystem, the waterfowl habitat
18 aspects of it is minimal. (Reading.)
19 You told us yesterday that you replied on Dr. Jehl and
20 Dr. Stine for that?
21 MR. KAVOUNAS: No, I did not, sir.
22 MR. DODGE: I believe you did, but I will withdraw that
23 comment. Let me ask you: Did any of the three waterfowl
24 scientists that you hired ever tell you that the waterfowl
25 habitat aspects of it was minimal?
01 MR. KAVOUNAS: No, they did not. They did not assign
02 any value to it, nor did they assign a value to the entire
03 Mill Creek ecosystem.
04 MR. DODGE: Let me read you further from your testimony
05 at Page 2:
06 Although some parties would like LADWP to
07 return the entire flow of Mill Creek to its
08 natural course, LADWP has neither the ability
09 nor the obligation to do so. (Reading.)
10 Do you see that, sir?
11 MR. KAVOUNAS: Yes, sir.
12 MR. DODGE: You talk about ability and obligation. Let
13 me take obligation first.
14 Would you agree that ultimately it is not for you or me
15 to decide the obligation, but for State Water Board to
17 MR. KAVOUNAS: What is in my testimony are my
18 opinions. In my testimony, I say that the plan is good or
19 that I have an opinion that the Department does not have an
20 obligation, I believe that it is clear that that is my
21 opinion. I would not even dream of telling the State Board
22 what to do.
23 MR. DODGE: All I am saying is -- I am not questioning
24 that, sir. All I am saying is the question of whether an
25 obligation exists is ultimately a question for the State
02 MR. KAVOUNAS: Are you questioning me that? I believe
03 I have answered it. Yes, the State Board has the ultimate
05 MR. DODGE: You tell us at Page 4 of your testimony
06 that Los Angeles:
07 Is responsible for the cost of mitigation of
08 its actions. (Reading.)
09 Do you recall that testimony?
10 MR. KAVOUNAS: Not directly, but I'll take your word
11 for it. Where is it?
12 MR. DODGE: It is on Page 4, right there in the
14 It is LADWP's belief that it is responsible
15 for the cost of mitigation of its actions.
17 Do see that?
18 MR. KAVOUNAS: Yes.
19 MR. DODGE: Would you agree with me that the bottomland
20 of Rush Creek -- many acres of the bottomland of Rush Creek
21 are lost irretrievably due to incision?
22 MR. KAVOUNAS: I have no opinion on that.
23 MR. DODGE: Assume it is true. Hypothetically, assume
24 that many acres of the bottomland of Rush Creek are
25 irretrievably lost to incision.
01 Would you agree that it might be reasonable to mitigate
02 for that by restoring the Mill Creek bottomland?
03 MR. KAVOUNAS: No, no. The Department had nothing to
04 do with the degradation of Mill Creek.
05 MR. DODGE: First point you made in your testimony was
06 the ability. You talked about obligation. Now let's talk
07 about ability to restore. Let me ask you this, sir:
08 Assuming that DWP were: to purchase the Conway Ranch
09 water, one; two, persuade the United States Forest Service
10 to send its water rights on the DeChambeau Ranch down to
11 Mill Creek; and three, upgrade the return ditch that runs
12 from Lundy Power House to Mill Creek to 70 cfs. If those
13 three things were done, would the entire flows be returned
14 to Mill Creek?
15 MR. KAVOUNAS: No, sir.
16 MR. DODGE: Why is that wrong?
17 MR. KAVOUNAS: Because the Simis water right at 1.8 cfs
18 would still be there.
19 MR. DODGE: That is correct, the 1.8 water right
20 assignment would be there. Putting the Simis right aside,
21 would those three elements accomplish the full rewatering of
22 Mill Creek?
23 MR. KAVOUNAS: If the Department were to purchase the
24 Conway water right and persuade the Forest Service to give
25 up their water right --
01 MR. DODGE: And expand the return ditch?
02 MR. KAVOUNAS: -- and expand the return ditch?
03 MR. DODGE: Yes.
04 MR. KAVOUNAS: It is my opinion that it would still not
05 be possible.
06 MR. DODGE: Why is that?
07 MR. KAVOUNAS: Because taking the water away from Ranch
08 Conway would have an impact on Conway Ranch, and it is my
09 opinion that if an environmental review processes were to go
10 forward, that would not be permitted.
11 MR. DODGE: I am not asking whether it is legally
12 permitted. I understand that there are legal process to go
13 through. I am just asking you the physical question, sir,
14 the physical question.
15 MR. KAVOUNAS: Yes, in answer to your question, in a
16 physical sense that would be one way of doing it, yes.
17 MR. DODGE: So, physically, if you purchase the Conway
18 water rights, persuade the Forest Service to bring its water
19 back to Mill Creek, and upgrade the return ditch to 70 cfs,
20 physically it is possible to wholly rewater Mill Creek?
21 MR. KAVOUNAS: And get the appropriate decision makers
22 to go along with it. That is also a physical requirement.
23 MR. DODGE: Go through the EIR process and get the
25 MR. KAVOUNAS: Yes.
01 MR. DODGE: But, physically, those three things would
02 do it?
03 MR. KAVOUNAS: I really believe that getting through
04 any EIR is physical process is also a physical process.
05 MR. DODGE: I will grant you that.
06 MR. KAVOUNAS: Thank you. Will you also grant me that
07 there is another way to do it? I mean, if you want to talk
08 about a physical solution, the Department could conceivably
09 purchase the Lundy Power Plant, conceivably purchase all the
10 facilities that Edison has and remove all of Edison's
11 impacts from the Basin or in this particular watershed.
12 MR. DODGE: Is the Lundy Power Plant for sale?
13 MR. KAVOUNAS: It is my understanding from speaking
14 with Bert Almond from Edison, that if they were required to
15 spend any money, that the Lundy Power Plant is so marginal
16 that they would have to close it down.
17 MR. DODGE: One of the rules is you have to answer my
19 Is the Lundy Power House for sale?
20 MR. KAVOUNAS: Not right now.
21 MR. DODGE: Is the Conway Ranch for sale?
22 MR. KAVOUNAS: I don't know.
23 MR. DODGE: You don't know?
24 MR. KAVOUNAS: I was told by -- what is the name of the
25 guy that used to be the partner in Conway?
01 -- Mr. Fredrickson, that "He gets a phone call every
02 week about developing that property." If I had a piece of
03 property that I get a phone call every week on developing, I
04 am not sure I'd want to sell it.
05 MR. DODGE: It is a simple question, sir: Is it on the
06 market? Is it being offered on the market for sale?
07 MR. KAVOUNAS: I don't know if it is on the market.
08 TPL has an option to purchase it. Does that put it on the
09 market? Does that mean it's on the market? That means that
10 TPL has an option to purchase it.
11 MR. DODGE: It also means they are interested in
12 selling it, doesn't it?
13 MR. KAVOUNAS: To TPL, yes.
14 MR. DODGE: Mr. Perrault, good morning.
15 MR. PERRAULT: Good morning.
16 MR. DODGE: DWP's application for Mill Creek water, as
17 I understand it, is from -- you're asking for 16 cfs from
18 October 1 to April 30. Correct?
19 MR. PERRAULT: That's correct.
20 MR. DODGE: The 16 cfs, how was that chosen, sir?
21 MR. PERRAULT: How was 16 cfs chosen? 16 cfs was
22 chosen because, number one, water rights during the --
23 excuse me, not water rights, the availability of water
24 during the winter months is limited. The capacity of
25 Edison's return ditch is 16 cfs, so we chose an upper limit.
01 MR. DODGE: It was chosen as an upper limit with the
02 capacity of Edison's return ditch and not on the basis of
03 being best for waterfowl?
04 MR. PERRAULT: I mean, that was one of the issues. I
05 mean, the reality of it during that time of the year, there
06 is only an average of 11 cfs that goes through. So, if you
07 are going to apply for a winter right, it would make sense
08 to apply for that amount of water. And since the capacity
09 is 16 cfs, why don't you just go to the full capacity of the
11 MR. DODGE: Let me ask you to take a look at Exhibit
12 65, Mr. Perrault. Could you show the Board where the return
13 ditch is? Show them where it starts and where it ends,
15 MR. PERRAULT: Yes. The return ditch begins here at
16 the tailrace of the Lundy Power Plant and returns to Mill
17 Creek at this location, here.
18 MR. DODGE: It goes into Mill Creek then?
19 MR. PERRAULT: Yes, that is correct.
20 MR. DODGE: Describe it for the Board, if you could,
22 MR. PERRAULT: Describe it? It's an open ditch with a
23 low gradient that meanders for approximately a mile and a
25 MR. DODGE: Dirt?
01 MR. PERRAULT: Portion of it is dirt; portion of it is
02 lined with concrete.
03 MR. DODGE: How did you come to think it had a capacity
04 of 16 cfs?
05 MR. PERRAULT: I was told by Edison personnel and DWP
07 MR. DODGE: Have you seen testimony from Edison in this
08 proceeding that the capacity presently may be as low as 12
10 MR. PERRAULT: I have seen capacity. I have seen
11 testimony of that, and I am also familiar with the type of
12 measuring devices. So, I am well aware that the accuracy of
13 those devices aren't very good.
14 MR. DODGE: Do you have an opinion as to whether the
15 return ditch, as it exists today, is usable in winter to
16 pass water?
17 MR. PERRAULT: Do I have an opinion? I believe that it
18 is, yes.
19 MR. DODGE: Have you heard anyone say, "Due to its low
20 gradient and icing, that there is a substantial probability
21 that it will not pass water in winter"?
22 MR. PERRAULT: No, I haven't.
23 MR. DODGE: When you had conversations with Bert
24 Almond, he didn't say anything like that?
25 MR. PERRAULT: No, he didn't.
01 MR. DODGE: On Page 14 of your testimony, sir, let me
02 read this to you. You refer to a proposal the scientists
03 had to -- talking about 1.1 million pipeline that the
04 scientists rejected. Then you say:
05 Any improvement of the return ditch would
06 likely be as expensive, if not more so, then
07 the rejected pipeline proposal. (Reading.)
08 Did you do any calculations in that regard?
09 MR. PERRAULT: I did not, but I took that number from
10 comments that I believe you provided, Mr. Dodge, to some of
11 the work that we had done.
12 MR. DODGE: Had you seen the testimony of Larry
13 Harrison submitted in this matter, which gives substantially
14 lower cost for an updated and improved return ditch?
15 MR. PERRAULT: Yes, I have.
16 MR. DODGE: Do you have any quarrel with Mr. Harrison's
18 MR. PERRAULT: I haven't reviewed it enough in detail,
19 enough detail, to have an opinion.
20 MR. KAVOUNAS: I have a quarrel with it. Mr. Harrison
21 did not look at corrugated metal, and he did not look at
22 simply lining the existing ditch. He looked at installing
23 concrete pipe and metal pipe.
24 MR. DOGE: Then you go on, Mr. Perrault:
25 In addition, the return ditch is an SCE
01 facility, and SCE has expressed an
02 unwillingness to improve the ditch. Personal
03 communication where Bert Almond. (Reading.)
04 When you had this conversation with Mr. Almond, Mr.
05 Perrault, did he tell you that SCE did not object if someone
06 else wanted to spend the money to improve the ditch?
07 MR. PERRAULT: No, he did not.
08 MR. DODGE: Have you seen the SCE testimony on that
09 point, submitted on that matter?
10 MR. PERRAULT: No, I have not. It is my understanding
11 that you had called Edison as a witness, and that they did
12 not provide any testimony.
13 MR. DODGE: On Page 15, under the category Unresolved
14 Mill Creek Issues, you mentioned the Paoha Project.
15 Are you aware that that matter has now been resolved?
16 MR. PERRAULT: I am aware that it hasn't been
17 completely resolved. I am aware that the FERC has given an
18 order to take away the license of Mr. Keating.
19 MR. DODGE: Revoke the license?
20 MR. PERRAULT: Yes. But the State Water Board has not
21 acted on the permit.
22 MR. DODGE: Now, let's go back to Page 7 of your
23 testimony. You say at Page 7:
24 Although the scientists would prefer full
25 restoration of waterfowl habitat on Mill
01 Creek, they concluded that full restoration
02 is probably infeasible because of the complex
03 issues regarding regulatory authorities,
04 competing beneficial uses of water, water
05 rights, water conveyance constraints, cost,
06 reasonableness, and environmental
07 consideration. (Reading.)
08 Citing Page 98. So, doggedly, I went to Page 98, and I
09 am reading what I think you are referring to:
10 Restoration of all potential waterfowl
11 habitat on Mill Creek does not appear
12 feasible under current conditions due to
13 complicated issues involving water rights and
14 the need for structural improvements to
15 convey increase flows. (Reading.)
16 At least as to the portion that I have read, sir, you
17 would agree that they do not mention cost, reasonableness,
18 or environmental consideration, correct?
19 MR. PERRAULT: That is true. And I probably erred in
20 not adding additional pages in other parts of their report
21 where they do refer to those issues.
22 MR. DODGE: Let's talk about the ones that are
23 mentioned. Water rights. Now, putting aside the Simis
24 water rights, you would agree that the water rights issue
25 can be revolved if we purchased the Conway -- if the Conway
01 water rights are obtained and if the U.S. Forest Service
02 dedicates its rights?
03 MR. PERRAULT: No, I disagree with that.
04 MR. DODGE: Why is that, sir?
05 MR. PERRAULT: The reason for that is -- well, one of
06 the issues was the Forest Service right. The only reference
07 that the scientists made to the Conway water rights were for
08 winter flow. And it's DWP's interpretation of the decree
09 that their winter flow or their right to winter water is
10 limited to only those issues we talked about yesterday, that
11 irrigation water it is not a part of this.
12 MR. DODGE: Isn't it a fact, sir, that apart from the
13 Simis right that we could return all of the water that
14 starts in the Mill Creek watershed at the top of Mill Creek
15 by acquiring Conway rights, by the dedication of DWP's
16 rights, and by getting the Forest Service to agree?
17 MR. PERRAULT: That we could return all the water
18 rights or all of the water?
19 MR. DODGE: No, water.
20 MR. PERRAULT: No, I disagree with that.
21 MR. DODGE: Why is that, again.
22 MR. PERRAULT: The environmental issues that Mr.
23 Kavounas indicated on Wilson Creek, which I would tend to
24 believe is some water would have to remain there.
25 MR. DODGE: That may well be. Assume, just
01 hypothetically, that the environmental assessment is made
02 Wilson Creek doesn't get any water. I am not saying I
03 advocate that, but assuming hypothetically that happened.
04 Physically all the water could be returned to Mill Creek
05 under the scenario I given you.
06 MR. PERRAULT: In an unreal world, probably, yes.
07 MR. DODGE: At one point in time 6391 was an unreal
08 world, too, so you can never tell what happens.
09 The second point the scientists make on Page 98 is
10 referred to, the need for structural improvements in order
11 to return the Mill Creek water, and would you agree with me
12 that the only structural improvement at issue is the upgrade
13 to 70 cfs of the return ditch?
14 MR. PERRAULT: I am sorry, didn't hear the question.
15 MR. DODGE: I am still on the scientists, Page 98, the
16 part I read to you. The second item after water rights,
17 they talked about structural improvements.
18 Do you take that to be a reference to the upgrade of
19 the return ditch to 70 cfs?
20 MR. PERRAULT: No. It is my interpretation that they
21 took most of this from Dr. Stine's appendix to the report.
22 He talks about several other structural improvements.
23 MR. DODGE: Would you agree, sir, that -- I am going to
24 change subjects now.
25 Would you agree that the scientists recommended high
01 spring and summer flow releases that mimic the natural
03 MR. PERRAULT: Yes, they did.
04 MR. DODGE: Would you agree that the scientists
05 recommended exploring upgrading the return ditch?
06 MR. PERRAULT: Yes, they did.
07 MR. DODGE: Would you agree that the scientists
08 recommended that three Mill Creek distributaries be reopened
09 and two be studied?
10 MR. PERRAULT: That was their recommendation; that is
11 correct, although they did, in my opinion, they deferred
12 from that later.
13 MR. DODGE: Would you agree that DWP's plan does none
14 of these things?
15 MR. PERRAULT: None of?
16 MR. DODGE: None of the three things I mentioned: high
17 spring and summer flow release that mimic the natural
18 hydrograph, exploring upgrading the return ditch, and
19 reopening of the distributaries?
20 MR. PERRAULT: No, I wouldn't agree with that at all.
21 MR. DODGE: Which of those three do you differ?
22 MR. PERRAULT: We do the first two.
23 MR. DODGE: High spring and summer flows that mimic the
24 natural hydrograph?
25 MR. PERRAULT: Yes.
01 MR. DODGE: You are proposing to send those flows down
02 Mill Creek?
03 MR. PERRAULT: Well, I mean, they talk about mimicking
04 the natural hydrograph. There is a dam on the system and,
05 so -- I mean, they never qualified by what they mean by high
06 releases. I think that is a matter of interpretation. The
07 flows that we have sent down include higher flows during the
08 summertime, plus water that comes from the reservoir that is
09 released every year.
10 MR. DODGE: Would you agree that the highest flows come
11 out of the Southern California Edison Penstock during the
12 late spring and summer?
13 MR. PERRAULT: No.
14 MR. DODGE: When do the highest flows come out?
15 MR. PERRAULT: I am sorry, yes, the flows that go
16 through the Penstock, the highest ones that come out, come
17 out during on the months of June and July.
18 MR. Dodge: Are you proposing in your plan to send
19 those high flows down to Mill Creek?
20 MR. PERRAULT: I am proposing to send a portion of
21 those. But there are much higher flows that come directly
22 down Mill Creek that are released from the reservoir that
23 are far in excess of 70 cfs.
24 MR. DODGE: You said you were doing the first and
25 second. Are you saying your plan now involves exploring the
01 upgrading of the return ditch?
02 MR. PERRAULT: It's already been explored.
03 MR. DODGE: What did that exploration consist of?
04 MR. PERRAULT: I think that we stated that in our
05 testimony, that Edison is opposed to doing it.
06 MR. DODGE: What you said in your testimony is that
07 Edison is opposed to paying for it. Is that the extent of
08 your exploration?
09 MR. PERRAULT: Well, it is an Edison facility.
10 MR. DODGE: I don't mean to be argumentative, sir, I
11 just want to know if that is the extent of your exploration.
12 MR. PERRAULT: Yeah. We have not pursued that any
14 MR. DODGE: Now, Ms. Bellomo brought out testimony
15 yesterday that under the scientists' plan there would be
16 approximately 55 acres of waterfowl habitat created in Lower
17 Mill Creek.
18 Do you recall that testimony, sir?
19 MR. PERRAULT: I remember the number of 55 acres. I
20 don't remember that it was all waterfowl habitat.
21 MR. DODGE: Would you agree that the figure would be
22 substantially less than 55 acres under DWP's plan?
23 MR. PERRAULT: Common sense would say that that would
24 be so.
25 MR. DODGE: I just got a couple more things with you,
01 and then we will be done.
02 Page 12 of your testimony, sir, you are talking about
03 the development of waterfowl habitat naturally. And you
04 have under C, Rewatering Mill Creek Distributaries.
05 Do you see that?
06 MR. PERRAULT: Yes, I do.
07 MR. DODGE: Going down to the second reason you say:
08 Second, the rewatering process by itself
09 may develop waterfowl habitats naturally.
10 These habitats are preferred because of
11 their sustainability and the biodiversity
12 associated with the natural recovery process.
13 The delta of Lee Vining Creek is a prime example
14 of this natural process. (Reading.)
15 Do you see that, sir?
16 MR. PERRAULT: Yes, I do.
17 MR. DODGE: So, you are using there, the Lee Vining
18 Creek experience as some guidance for Mill Creek, correct?
19 MR. PERRAULT: May I add that I defer to Brian
20 Tillemans on this section. That is Brian's analysis.
21 MR. DODGE: You know, excuse me, but it is in your
23 MR. PERRAULT: Well, it is there with a personal
24 communication from Brian Tillemans, who is here on the
01 MR. DODGE: Let me ask you, sir, are you aware that
02 since Judge Finney's order in 1989, that Lee Vining Creek
03 has been virtually a flow through situation?
04 MR. PERRAULT: Yes.
05 MR. DODGE: So, this natural waterfowl habitat, as you
06 characterize it, was created by a flow through situation; is
07 that right?
08 MR. PERRAULT: Once again, this is Brian's -- this was
09 communication with Brian. I think he would be the more
10 appropriate person to talk to that.
11 MR. DODGE: Mr. Tillemans, would you agree that the
12 experience on the Lee Vining Creek creating natural
13 waterfowl habitat from the flow through situation would
14 suggest the same remedy on Mill Creek?
15 MR. TILLEMANS: I would suggest what happened on the
16 Lee Vining Creek in terms of return flows and removal of
17 grazing would result in the same type of response you saw in
18 Lee Vining Creek.
19 MR. DODGE: Natural flows?
20 MR. TILLEMANS: It doesn't have to be natural flows.
21 It depends to what degree you want to restore it.
22 MR. DODGE: Mr. Perrault or Mr. Tillemans, either one
23 can answer the series of questions, then I am done.
24 Here is Lundy Lake, right, and water comes out of Lundy
25 Lake and it goes right down here, down Mill Creek, right
01 down into Mono Lake.
02 Is that right?
03 Okay. Now, Mr. Perrault in his testimony at Page 5
04 tells us, if I can find it, talking about Southern
05 California Edison's operation of its reservoir, releases
06 must be made in most years to avoid spilling the reservoir.
07 Do you see that, both of you, gentlemen?
08 MR. PERRAULT: Yes, I do.
09 MR. DODGE: Am I right that the capacity of Lundy
10 Reservoir is such that in most years there has to be
12 MR. PERRAULT: No. It was Edison's practice, until the
13 late '80s, that they tried not to spill the reservoir, but
14 to make releases instead of spilling the reservoir.
15 MR. DODGE: In most years high releases, whether it is
16 spilling or through some other mechanism, high releases are
18 MR. PERRAULT: Yes, because of the small capacity of
19 the reservoir.
20 MR. DODGE: At some point, these releases stopped,
21 correct, in most years?
22 MR. PERRAULT: Yes. That has been the case in the
23 past, although the Forest Service has asked for a year-round
24 release. That is still pending in the courts.
25 MR. DODGE: That has happened yet, right?
01 MR. PERRAULT: It hasn't happened yet, no.
02 MR. DODGE: When water comes out of the Lundy Reservoir
03 during these high water times, am I right that water in Mill
04 Creek goes right down to Mono Lake?
05 MR. PERRAULT: Well, Mono Lake downstream from Mill
06 Creek, so, yeah, all the water that does make it, does go
07 into the lake, that isn't diverted.
08 MR. DODGE: In your experience -- Mr. Tillemans, you
09 may be a good person to answer this question.
10 In your experience are fish flushed down to the
11 bottomlands of Mill Creek, too, at that time?
12 MR. TILLEMANS: I don't know of fish being flushed down
13 there at that time, personally.
14 MR. DODGE: Mr. Perrault, do you know?
15 MR. PERRAULT: I have no knowledge of that, no.
16 MR. DODGE: If, hypothetically, fish were flushed down
17 to the bottomlands of Mill Creek and then SCE turned off the
18 water, what is going to happen to those fish?
19 MR. BIRMINGHAM: I am going to object on the grounds of
20 relevance. This relates to restoration of waterfowl
21 habitat. It doesn't relate to any fishery issue. I don't
22 understand the relevance.
23 CHAIRMAN CAFFREY: I am going to sustain that on the
24 basis I don't understand it either, and I don't think it is
01 MR. DODGE: Well, let me ask a question and then I'll
02 abide by the ruling.
03 Are you saying it is not relevant to this panel or not
04 relevant to the proceeding?
05 CHAIRMAN CAFFREY: I am not sure what portion of this
06 proceeding it would be relevant. Off the top of my head, I
07 don't think it is relevant to this panel.
08 MR. DODGE: I fully understand that. The reason I ask
09 it, I believe there are people in this room who are going to
10 be testifying about the relative benefits, fishery benefits,
11 of Mill Creek and Wilson Creek. If that is going to be
12 allowed, then I should be allowed to address these issues
13 also. Perhaps not with this panel.
14 CHAIRMAN CAFFREY: When we get to that, we will deal
15 with it then, Mr. Dodge.
16 MR. DODGE: Dr. White, how are you today?
17 DR. WHITE: Fine, thanks. How are you?
18 MR. DODGE: That is all I have.
19 DR. WHITE: I came a long way.
20 CHAIRMAN CAFFREY: You still got paid, right?
21 Thank you, Mr. Dodge.
22 Mr. Birmingham, you were --
23 MR. BIRMINGHAM: I was premature.
24 CHAIRMAN CAFFREY: Yes, we still do have
25 cross-examination from staff and then the Board Members, if
01 there is any.
02 Mr. Frink. Ladies and gentlemen.
05 BY BOARD STAFF
06 MR. FRINK: Mr. Kavounas, I have a few questions. You
07 stated that the Department has done no analysis of the
08 biological effects of your waterfowl habitat restoration
09 plans; is that correct?
10 MR. KAVOUNAS: Yes, it is.
11 MR. FRINK: Rather, the Department tried to incorporate
12 the recommendations of the three scientists on the panel
13 that you retained. And to the extent that you believed it
14 was reasonable or feasible, you included those
15 recommendations in your plan?
16 MR. KAVOUNAS: Yes.
17 MR. FRINK: Could you explain, again, how the members
18 of that group were selected?
19 MR. KAVOUNAS: I really can't because I wasn't there.
20 MR. FRINK: Is there a member of the panel that could?
21 Mr. Tillemans.
22 MR. TILLEMANS: Originally, the Department was going to
23 go out and look for waterfowl consultants to take up this
24 task. And then it became apparent that the other parties
25 wanted to have a say in it, and it became a joint
01 process. And the Department's consultant was Rod Drewien,
02 out of Idaho, that we would like to have seen on that Board
03 and was okayed. The Mono Lake Committee, Sally Miller
04 wanted Tom Radcliff. There was a Mono Lake Committee
05 representative on there, as well, and Dr. Reid and State
06 Lands, as well. And the rest of the parties wanted Dr. Reid
07 on there, as well. Basically, those were the three.
08 MR. FRINK: And were the governmental agencies or
09 organizations that you consulted with in arranging the panel
10 of experts, were they generally happy with the group that
11 was selected?
12 MR. TILLEMANS: Yes, the other parties were, yes.
13 MR. FRINK: I believe you described the selective
14 burning programs that the Department of Water and Power has
15 done in other lands that it owns outside of Mono Basin?
16 MR. TILLEMANS: Yes.
17 MR. FRINK: Have those burnings been conducted as part
18 of the Department's overall land management practices?
19 MR. TILLEMANS: Yes. We have several burning programs
20 going. We have several towns in the Owens Valley, and with
21 those burns it is basically a green belt-type burn where we
22 try to burn for fire safety around the towns.
23 We have range burns with our lessees, trying to improve
24 the pastures and improve the vigor of the vegetation on some
25 of the leases. We also have some wildlife programs where we
01 burn wetland areas and try to improve waterfowl habitat, as
03 MR. FRINK: Who does the Department consult with before
04 conducting those burns?
05 MR. TILLEMANS: The Department --
06 MR. FRINK: The Department of Water and Power.
07 MR. TILLEMANS: Basically, on our range land we work
08 with our lessees, and we have staff that has botanical or
09 wildlife expertise, and we go out and look at the site and
10 figure out where we can make any improvements.
11 MR. FRINK: Do you consult with the Department of
12 Forestry in any instances?
13 MR. TILLEMANS: Oh, yes. We bring -- the California
14 Department of Forestry is the implementation arm of all of
15 our burns. We work very closely with them.
16 MR. FRINK: Do you consult with the local pollution
17 control district in any instances?
18 MR. TILLEMANS: Yes. That is big part of it. We make
19 sure that the day smoke is blowing to town, we don't conduct
20 the burns. People don't like that.
21 MR. FRINK: So, approval of both, the Department of
22 Forestry and the local air pollution control district is
23 ordinarily required?
24 MR. TILLEMANS: Yes. In some of the burns in relation
25 to Buckley Ponds, we'll contact Fish and Game and get their
01 opinions on if they have concerns. We take them out there
02 and work with them on that, as well. That is a cooperative
03 -- the Buckley Ponds Wildlife Project was signed in the
04 '70s. It was a cooperative project with the California
05 Department of Fish and Game, DWP, and California Department
06 of Forestry.
07 MR. FRINK: Is there an annual variation in the
08 property that you burn, in the amount of property and the
09 location of the property?
10 MR. TILLEMANS: Most definitely. During the extent of
11 the drought, we were a little bit concerned about burns
12 because of the chance of fire taking off because of the dry
13 conditions. And dependent on the need for the fires, you
14 know, if we've gone through a series of fires in the green
15 belt areas around town, we don't need to do it for a couple
16 of years. We don't have to burn those parcels.
17 In a lot of it, too, is if one of our livestock lessees
18 comes to us and that will vary year to year, too, depending
19 if they have needs to burn.
20 MR. FRINK: Mr. Kavounas, Appendage 1 to the Waterfowl
21 Habitat Restoration Plan is the plan that three independent
22 scientists prepared; is that correct?
23 MR. KAVOUNAS: I believe so, yes.
24 MR. FRINK: On Page 90 of that plan that you were
25 discussing earlier, get it in front of me, just a minute,
01 under the heading of Cost, State's maintenance of Projects A
02 and B, are limited to the water delivery system. It says no
03 maintenance would be required for projects.
04 Could you explain that second statement? I was a
05 little unclear as to what that meant.
06 MR. KAVOUNAS: If you wouldn't mind giving me ten
07 seconds to review it, Mr. Frink.
08 MR. FRINK: Sure.
09 MR. KAVOUNAS: The best I can interpret the statement
10 that is made here is that the scientists believe that there
11 is no maintenance required, and so operating and maintenance
12 costs have not been -- maintenance costs have not been
13 included for A and B. They seem to imply that operating
14 costs would be included. Maintenance costs they say for A
15 and B are not included because they are not necessary.
16 That would lead me to the conclusion that A and B have
17 operating costs, C has operating had maintenance costs that
18 are not included.
19 MR. FRINK: To your knowledge, is there an estimate any
20 place of the operating costs of either Projects A or B?
21 MR. KAVOUNAS: No. Maybe by reference only. My
22 understanding is that the first phase of DeChambeau Ponds
23 Project is approximately $30,000 a year. I don't know how
24 applicable that would be to, say, element B.
25 MR. FRINK: Have there been maintenance costs
01 associated with the first phase of the DeChambeau Project?
02 MR. KAVOUNAS: I am not certain on that. It seems to
03 me that Mr. Dodge was implying that they're redoing portions
04 of Phase I. In my mind, that wouldn't qualify as
05 maintenance. That would qualify as an upgrade.
06 MR. FRINK: Does any member of the panel have knowledge
07 of any expenses that have been incurred in either
08 maintaining or upgrading Phase I of the projects?
09 MR. TILLEMANS: It is my understanding that there is a
10 well that the Forest Service and the joint project put in
11 between Ducks Unlimited and the Forest Service that is run
12 on propane. I think the cost of that was $30,000 a year.
13 That is no longer being continued because of budgetary
14 constraints of the Forest Service.
15 MR. FRINK: The purpose of the well was to provide
16 water to the ponds; is that correct?
17 MR. TILLEMANS: Yes, it was.
18 MR. FRINK: How are they providing water now?
19 MR. TILLEMANS: It is my understanding it hasn't been
20 provided for the majority of the past year, at least.
21 MR. FRINK: Is there much water in the pond?
22 MR. TILLEMANS: There is natural spring flow right now,
23 but that was in the original pond; that was there to begin
25 MR. FRINK: Phase I of the project, was that intended
01 to expand the size of the ponds from what they had been?
02 MR. TILLEMANS: Yes.
03 MR. FRINK: In your opinion, has that expansion
04 resulted in an increase of waterfowl habitat?
05 MR. TILLEMANS: At this point, if I can recall, the
06 last time there wasn't any water in the expansion. So, I
07 don't think so.
08 MR. FRINK: Was there a lining process of the ponds
09 undertaken to reduce the leakage?
10 MR. TILLEMANS: To my recollection, at first they were
11 waiting to see if the cracks in the bottom of the ponds were
12 going to seal up naturally. And I think there may be an
13 ongoing effort or some discussion regarding bentonite
14 sealing the ponds.
15 MR. FRINK: How were the cracks in the bottoms of the
16 ponds created?
17 MR. TILLEMANS: Probably from natural swelling and
18 shrinkage of initial rewatering and drying.
19 MR. KAVOUNAS: My impression is that there is some
20 clay, some amount of clay, on the bottom of the ponds, and
21 the cracks would be natural vesication cracks of the parent
22 clay when it dries.
23 MR. FRINK: Had there been some leakage in the ponds
24 before the effort was made to expand the size of ponds?
25 MR. TILLEMANS: Yes, that is my understanding.
01 MR. FRINK: Before they undertook the expansion
02 project, was the water that is available in the ponds
03 supplied from natural springs?
04 MR. TILLEMANS: No. I think -- again, this is not my
05 project, so I am just telling you what is out there. It is
06 my understanding they felt they needed additional water, and
07 that is why they put that well in there, to run the water
08 across the meadow and into the pond and be able to expand
09 that project to some ponds other than the existing one that
10 was there from the hot springs.
11 In answer to your increase in waterfowl habitat, Dr.
12 Jehl states that the use there has been basically the same
13 since he has been looking at the ponds.
14 MR. FRINK: Has the area of the ponds expanded as a
15 result of Phase I of the project?
16 MR. TILLEMANS: I think if the whole phase was
17 implemented, they would be. Due to the cost in maintenance
18 of maintaining that pump and some of the problems that have
19 occurred, I don't think the anticipated expansion has been
21 MR. FRINK: When was the project undertaken, the
22 expansion project begun?
23 MR. TILLEMANS. I went to the dedication. Bruce was
24 there. Four kids, my memory is waning. Couple years ago.
25 MR. DODGE: It was in April, I think.
01 CHAIRMAN CAFFREY: Which year?
02 MR. DODGE: I will work on that.
03 MR. KAVOUNAS: The project was completed in September
05 BOARD MEMBER DEL PIERO: I thought for a moment I was
06 going to have to swear in Mr. Dodge.
07 MR. FRINK: Mr. Tillemans, are you familiar with
08 waterfowl habitat in the area of Wilson Creek?
09 MR. TILLEMANS: Yes.
10 MR. FRINK: Is it your understanding that, if all the
11 water were removed from Wilson Creek, there would be a
12 decline in waterfowl habitat in that area?
13 MR. TILLEMANS: I would be very concerned about impacts
14 because I have seen it, and it is some of the best waterfowl
15 habitat in the north shore right now. And I would have
16 strong concerns that any dewatering and what impacts may
17 occur there. I am not a geohydrologist specialist, so I
18 can't give you an exact answer, but I would be very
20 MR. FRINK: To your knowledge, has anybody done an
21 environmental study to compare the potential gains in
22 waterfowl habitat through restoring flow to Mill Creek with
23 the potential loss of waterfowl habitat in the area of
24 Wilson Creek?
25 MR. TILLEMANS: I don't think a detailed assessment.
01 MR. FRINK: That is all I have.
02 Thank you.
03 MR. CANADAY: Mr. Perrault, you testified that on the
04 northernmost property that as shown on the exhibit, I am not
05 sure which number that is, but it is a Mill Creek/Wilson
06 Creek vicinity map.
07 MR. BIRMINGHAM: Exhibit 65.
08 MR. CANADAY: The northernmost property, you testified
09 that that is still irrigated from water that comes out of
10 the Lundy Project; is that correct?
11 MR. PERRAULT: What property are you referring to?
12 MR. CANADAY: The LADWP property, the most northern
13 property on the map.
14 MR. PERRAULT: Yes. It is my understanding that the
15 property is currently leased. I know it i leased to Mr.
16 Arnold Beckman, I don't know, and I believe it is still
17 irrigated, yes.
18 MR. CANADAY: Is that one of the pieces of property
19 under which you're proposing to potentially dedicate this
20 irrigation water, to the return of Mill Creek?
21 MR. PERRAULT: Well, yes. It's a minor amount of
22 water, only one cfs.
23 MR. CANADAY: You testified yesterday about the 1914
24 Mill Creek decision or decree; is that correct?
25 MR. PERRAULT: Yes.
01 MR. CANADAY: You mentioned -- and your testimony
02 described the water rights and how they are dedicated to the
03 various parties; is that correct?
04 MR. PERRAULT: Yes.
05 MR. CANADAY: Are you aware that the decree, as it
06 identifies the rights of the various parties, refers to the
07 natural flow of Mill Creek? Are you aware of that?
08 MR. PERRAULT: I am aware that it makes references to
09 the natural flows, yes.
10 MR. CANADAY: If it makes reference, in your mind, that
11 means that whatever water right is alloted to any party is
12 based on the natural flow of that hydrologic year to that
13 party; is that correct?
14 MR. PERRAULT: Well, I am not an expert on water
15 rights. I don't claim to be one, and so --
16 MR. CANADAY: You won't disagree that the Mill Creek
17 decision as it referred to the water rights refers to the
18 natural flow of Mill Creek as opposed to the impaired flow
19 of Mill Creek?
20 MR. PERRAULT: Once again, that is the reference it
21 makes, and I am still unclear in my mind as to how that
22 plays out.
23 MR. CANADAY: Okay.
24 Referring back to Exhibit 65, I believe, the Mill Creek
25 and Wilson Creek vicinity map. On that map it shows Mill
01 Creek or some sort of conveyance that we call Mill Creek
02 that begins at the tailrace of the Lundy Power Plant.
03 Is that, in fact, the actual watershed of Wilson Creek?
04 Would that be the start of the watershed of Wilson Creek,
06 natural watershed?
07 MR. PERRAULT: The natural watershed of Wilson Creek?
08 No. I believe it is lower than that.
09 MR. CANADAY: Do you know approximately on that map to
10 be able to describe to the Board where the watershed of
11 Wilson Creek is relative to the Lundy outfall?
12 MR. PERRAULT: Yeah. Let me point to where it would
14 MR. CANADAY: Thank you.
15 MR. PERRAULT: I believe it would be up in this area
17 MR. CANADAY: You are identifying the northern portions
18 of the Conway Ranch; is that correct?
19 MR. PERRAULT: Yes.
20 MR. CANADAY: So, by identifying that, your testimony
21 is that the Wilson Creek watershed does not start, in fact,
22 at the tailrace of the SCE power plant?
23 MR. PERRAULT: Well, no, I am not. I mean, the
24 confusion enters in on my mind that Mr. Keating had a right
25 on Wilson Creek, and in his diversion was just below the
01 Lundy tailrace. So, I guess that is a point of confusion
02 for me.
03 MR. CANADAY: Is there any carryover storage in Lundy
04 Lake, to your acknowledge, on an annual basis?
05 MR. PERRAULT: Well, it is my understanding that we
06 have an agreement with Edison that they can't carry over
07 more than 11 percent of the storage. If you look at the
08 long-term storage chart or average storage, there isn't much
10 MR. CANADAY: Much meaning several hundred acre-feet?
11 MR. PERRAULT: Yes.
12 MR. CANADAY: Are there any recreational values of
13 Lundy Lake, to your knowledge?
14 MR. PERRAULT: Yes, there are.
15 MR. CANADAY: Mr. Tillemans, could you tell me what
16 some of the recreation uses of Lundy Lake are?
17 MR. TILLEMANS: Yes. I camp up there a couple times
18 every year with my family. There is extensive fishing use
19 and camping. In the fall, it is in the brochures as being
20 one of the areas to go look at fall colors up by Lundy
21 Canyon and Reservoir, above it and what-have-you. It's
22 highly useful from a recreational standpoint.
23 MR. CANADAY: Are there developed recreational sites at
24 Lundy Lake or facilities?
25 MR. TILLEMANS: Yes, there are.
01 MR. CANADAY: What are there?
02 MR. TILLEMANS: Campgrounds, and there are boat
03 marinas, and there are houses behind Lundy Lake, as well,
04 private houses. But, basically, the locals go up there and
05 fish Lundy Lake and because of the scenery and the
07 MR. CANADAY: Thank you.
08 In the LADWP plan for waterfowl, it refers to
09 rewatering channels in Rush Creek, two channels in addition
10 to what the fishery scientists have recommended in the
11 fisheries plan.
12 Is that correct? I will take an answer from any one.
13 MR. TILLEMANS: Are you referring to the stream?
14 MR. CANADAY: The stream channels, yes.
15 MR. TILLEMANS: Right.
16 MR. CANADAY: The source of that water for the
17 rewatering is to be -- what is the water source for the
18 rewatering of those channels?
19 MR. TILLEMANS: In the Rush Creek bottomland?
20 MR. CANADAY: Yes.
21 MR. TILLEMANS: Rush Creek water.
22 MR. CANADAY: That water is to come from the existing
23 flow rates?
24 MR. TILLEMANS: Yes.
25 MR. CANADAY: Is there a possibility that this
01 additional water necessary for these channels could reduce
02 the flows for fisheries' restoration?
03 MR. TILLEMANS: That is one of the concerns that didn't
04 come out in the beginning. You always have some
05 trade-offs. If you take permanent water away from one place
06 and place it in another in that system, you are going to
07 have trade-offs.
08 That was not brought out. If your intent is to
09 rewater, to jump start vegetation, which I think the stream
10 scientists, Trush, Ridenhour, and Hunter, originally
11 intended and have stated so, by irrigating you can prefer
12 vegetation over, say, fisheries habitat. That is a
14 MR. CANADAY: The LADWP plan proposes to monitor
15 waterfowl populations for use on the lake and near shore
16 wetlands; is that correct, Mr. Tillemans?
17 MR. TILLEMANS: Yes.
18 MR. CANADAY: I believe that what is stated in the
19 plan is that monitoring will continue until they complete --
20 a wet and dry cycle is achieved after the target level is
21 achieved, the lake level is reached.
22 Is there any more meaningful time frame which is
23 anticipated? That doesn't provide the Board with any
24 understanding of time frame.
25 MR. KAVOUNAS: No. This is the same dilemma that we
01 have with adaptive management for the stream flows. The
02 idea is that you want to get a complete sample
03 representative years. The idea that has been going around,
04 around in my mind is we can set, let's say, a goal of -- we
05 get one year of each type representative, one representative
06 year of each type, or a maximum of a certain number of
07 years, regardless of whether we have achieved representation
08 or not.
09 As a maximum number of years, I would offer, maybe, ten
10 to 12 years.
11 MR. CANADAY: Beyond the reach --
12 MR. KAVOUNAS: Beyond the level of the lake, but that
13 is just my opinion.
14 MR. CANADAY: I am trying to understand what your
15 understanding might be for that time frame. Also in your
16 testimony, Mr. Kavounas, I believe it is your testimony,
17 LADWP proposes to fund a portion of the GIS studies, the
18 Salt Cedar removal, brine fly monitoring, potentially, and
19 it refers to duration.
20 I am not sure what duration means. I believe that is
21 on Page 2 of your testimony.
22 MR. KAVOUNAS: Third paragraph from the top?
23 MR. CANADAY: Yes, third paragraph.
24 MR. KAVOUNAS: What I am trying to make clear for State
25 Board and staff in my testimony there is, I am clearly
01 identifying the element that the Department did not
02 incorporate, the element of the scientists' plan that the
03 document did not incorporate.
04 So, you know, our plan does not propose Salt Cedar
05 control. The scientists recommended Salt Cedar Interagency
06 Task. And I believe it should be that, and I believe the
07 Mono County Collaborative Task Force will address and the
08 Department is part of that, and as such, will participate in
09 it. And the same goes for GIS.
10 Further, in my testimony I say we do not propose brine
11 fly monitoring for reasons that Dr. White has explained.
12 And in describing which elements of the scientists plan we
13 do not incorporate, I also say that we have some differences
14 in duration of monitoring. I guess, I believe we had some
16 MR. CANADAY: What is the Mono County Task Force?
17 MR. KAVOUNAS: That is fairly recently formed, I think
18 within the last year and a half, a task force of all the
19 agencies. I think that was organized under the direction of
20 the County, and it is intended to pull together all the
21 agencies that have land management responsibilities in the
22 County and address common issues. I don't know more details
23 than that.
24 I know we have an engineer from our Bishop office, Mr.
25 Lloyd Anderson, who regularly attends the meetings. I have
01 been in communication with him and have asked him if they
02 have goals, such as Salt Cedar, GIS, the shrimp, and they
04 You know, the solution that they seek is a solution
05 because there are some many agencies and there are different
06 ownerships of land and different jurisdictions, you need a
07 solution that everyone agrees to. The solution would have
08 to be participative by all the agencies. That is my
09 understanding of what the task force is.
10 MR. CANADAY: Is it your understanding that some sort
11 of vegetative GIS will be developed for the Mono Basin?
12 MR. KAVOUNAS: My understanding is that the task force
13 will result in a basin wide GIS; that GIS -- all different
14 layers of data could be added to it. Vegetation would be
15 one of them. You know, all kinds of information that would
16 be pertinent to land management.
17 MR. CANADAY: Would it be your testimony that the
18 Department would be willing to, in those layers of data,
19 provide those data tht are, one, on your land or on areas
20 which you are undertaking restoration activities?
21 MR. KAVOUNAS: Yes. The Department will be a full
22 partner with all the other land management.
23 MR. CANADAY: Mr. Perrault, has anyone investigated
24 alternative irrigation techniques for LADWP properties?
25 MR. PERRAULT: No, we have not.
01 MR. CANADAY: The current method is flood irrigation;
02 is that correct, through ditches?
03 MR. PERRAULT: Yes.
04 MR. CANADAY: Dr. White, let you earn your money.
05 You refer to the ongoing lake limnology and chemistry
06 modeling that is going, I believe, through Dr. Melack at
07 U.C. Santa Barbara; is that correct?
08 DR. WHITE: Yes, I did.
09 MR. CANADAY: Are the reports, are they in the form of
10 annual reports to the Department?
11 DR. WHITE: Yes. We do get an annual report, and most
12 of that data ends up being published in peer review
14 MR. CANADAY: Are those reports proprietary or are they
15 public information that could be distributed to the State
17 DR. WHITE: The State Board can have them. We provided
18 a lot of that information through the EIR.
19 MR. CANADAY: The access to those annual reports, if
20 the Board requested those, is part of an annual monitoring
21 and reporting requirement. Those would be made to the Board
22 on an annual basis?
23 MR. KAVOUNAS: Yes.
24 DR. WHITE: With the understanding that you won't try
25 to scoop Dr. Melack.
01 MR. JOHNS: Don't worry about it.
02 MR. CANADAY: Mr. Kavounas, it's your understanding,
03 and any other member of the panel, it is your understanding
04 that because of the applications filed before this agency
05 for water rights or any future 1707 process before this
06 Board, that the likelihood is the City of Los Angeles would,
07 in fact, become the lead agency for any State environmental
08 documentation? Is that your understanding?
09 MR. BIRMINGHAM: It is a requirement of D-1631. That
10 is our understanding.
11 MR. CANADAY: Thank you. That is all I have.
12 CHAIRMAN CAFFREY: Is that the end of the questions?
13 Thank you very much, ladies and gentlemen.
14 Any questions from the Board Members for
16 Mr. Del Piero, one finger; does that mean one question?
18 CROSS EXAMINATION
19 BY MEMBERS OF THE BOARD
20 BOARD MEMBER DEL PIERO: One question, literally just
21 one, yes. No multiple part.
22 Earlier, a question was asked whether or not any
23 specific analysis had been done in terms of analyzing the
24 waterfowl habitat that currently exists in Wilson Creek and
25 what the impact of that would be on rediversion of water
01 back into Mill Creek. I think the answer was, there has
02 been no detailed analysis done.
03 Are any of you aware of any analysis that has been done
04 in regards to preliminary evaluations as to the impacts of
05 those issues?
06 MR. KAVOUNAS: To my knowledge, I know of two opinions
07 that have been rendered on the value of Wilson habitat. The
08 one -- the first one is from Dr. Jehl, who has been our
09 consultant and has collected our monitoring data throughout
10 this period and, if I may include, this last year as well.
11 In his opinion, the -- it's my impression that his
12 opinion is that the habitat at the mouth of Wilson Creek is
13 one of the best habitats for waterfowl in the basin.
14 The second opinion that I am aware of is the one by the
15 three scientists on Page 99 of the report, which says,
16 regarding Wilson Creek, this channel has currently limited
17 value to waterfowl and low potential for restoration. So I
18 see two conflicting opinions. And the only thing I note is
19 the three scientists did not consult with Dr. Jehl. So,
20 there was no attempt to resolve any scientific opinion
22 MR. TILLEMANS: I might add, too, Mr. Del Piero, I know
23 BLM did a resource assessment.
24 BOARD MEMBER DEL PIERO: BLM?
25 MR. TILLEMANS: BLM. And I think Terry Russi will
01 address that in his testimony.
02 BOARD MEMBER DEL PIERO: Where?
03 MR. TILLEMANS: They have land on Wilson Creek. They
04 went through and assessed the resources that they had on
05 their land.
06 BOARD MEMBER DEL PIERO: That is the resources
07 assessment for Wilson Creek. Did they do a comparative
08 analysis in terms of what would happen in the event water
09 would be transferred out of there?
10 MR. TILLEMANS: I think you have to refer to BLM.
11 BOARD MEMBER DEL PIERO: That is coming up soon?
12 MR. JOHNS: Yes.
13 BOARD MEMBER DEL PIERO: Thank you very much,
15 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.
16 Anything else from the Board Members?
17 Time for redirect?
18 MR. BIRMINGHAM: Would this be an appropriate time for
19 morning break?
20 CHAIRMAN CAFFREY: Excuse me. Thank you.
21 I saw you looking at the clock, and it is an opportune
22 time for about a ten minute break.
23 Let's do that. Thank you.
24 (Break taken.)
25 CHAIRMAN CAFFREY: We will resume the hearing and, Mr.
01 Birmingham, it is time for redirect of the panel. Do you
02 have an estimate of how much time you are going to need, sir?
03 MR. BIRMINGHAM: Probably about half an hour.
04 CHAIRMAN CAFFREY: Thank you, sir.
05 We will set the clock at half an hour.
07 REDIRECT EXAMINATION
08 BY LOS ANGELES DEPARTMENT OF WATER AND POWER
09 BY MR. BIRMINGHAM
10 MR. BIRMINGHAM: Mr. Tillemans, I would like to follow
11 up, if I may, on a process that was followed in the
12 preparation of the Waterfowl Habitat Restoration Plan
13 submitted to the Board by the Department of Water and
15 The three consultants were retained by the Department;
16 is that correct?
17 MR. TILLEMANS: That is correct.
18 MR. BIRMINGHAM: What was the procedure used in
19 selecting those consultants?
20 MR. TILLEMANS: The procedure was the parties submitted
21 recommendations of who they would like to be interviewed for
22 that. And the Department at first was going out and looking
23 on its own for some expertise in waterfowl, and it was
24 desired to get input from the other parties who they might
25 want to recommend. And thereafter it was, basically, we
01 were at a meeting in Sacramento and we kind of hashed out
02 who would be on the team, based on the input of the
04 MR. BIRMINGHAM: When you say "we hashed out," who is
06 MR. TILLEMANS: It was the TAG group in regards to
08 MR. BIRMINGHAM: The participants in that TAG group
09 meeting were representatives of the parties designated by
10 Decision 1631?
11 MR. TILLEMANS: That's correct.
12 MR. BIRMINGHAM: Those were the parties that 1631 said
13 that the Department was supposed to consult with in
14 connection with the submission of the waterfowl habitat
16 MR. TILLEMANS: That's correct.
17 MR. BIRMINGHAM: Mr. Kavounas, in preparing the plan
18 that was submitted by the Department of Water and Power to
19 the State Water Resources Control Board, what process did
20 the Department follow in deciding what recommendations of
21 the three consultants would be included in that plan?
22 MR. KAVOUNAS: We followed the guidelines given to us
23 with Decision 1631 and tried to apply what we consider is
24 reasonable and feasible as a standard, and we held the
25 projects up to that. And to get some scientific relevance,
01 we consulted with Dr. Joe Jehl, as has been fairly apparent
02 in my testimony and cross-examination today.
03 MR. BIRMINGHAM: In trying to decide what is reasonable
04 and feasible, did the Department consider those aspects of
05 the plan over which it had control?
06 MR. KAVOUNAS: Yes.
07 MR. BIRMINGHAM: Could you explain further how that
08 criterion affected your decision about what to include in
09 the plan?
10 MR. KAVOUNAS: I can give you some examples. For
11 example, in the burn program, the Department's plan proposes
12 to conduct the burns as promoted by the scientists on our
13 land. When it comes to other agencies' land, I believe the
14 plan recommends that we will encourage them and provide them
15 with any assistance that we can. Since it is their land,
16 that they would be responsible because we believe that burns
17 are part of responsible land management, anyway.
18 To give you another example, Mill Creek, the scientists
19 called for the Department to dedicate its irrigation right
20 in Thompson, and they called that a major and significant
21 first step toward achieving this as a restoration goal. We
22 believe that is well within our control, so we went ahead
23 and recommended that in our plan.
24 MR. BIRMINGHAM: As an example, the entire rewatering
25 of Mill Creek was something that you have viewed beyond your
02 MR. KAVOUNAS: Yes.
03 MR. BIRMINGHAM: It has been suggested that the
04 Department could buy Conway Ranch. Has the Department
05 considered buying Conway Ranch?
06 MR. KAVOUNAS: Not in preparation of the waterfowl
07 habitat plan, not at all.
08 MR. BIRMINGHAM: Another example I think that came out
09 during your cross-examination, was scrapes. You concluded
10 that you wouldn't include scrapes because the lands on which
11 those scrapes would occur were lands within the control or
12 under the jurisdiction of the State Lands Commission and
13 they objected to that. The State Lands Commission objected
14 to that restoration proposal.
15 Is that correct?
16 MR. KAVOUNAS: That's correct.
17 MR. BIRMINGHAM: In response to Mr. Dodge's question
18 this morning, you indicated that if the proposed scrapes
19 occur on DWP's land, then the Department would carry out
20 that proposal?
21 MR. KAVOUNAS: Yes. I would like to point out that
22 that, along with everything else, is a result of cooperative
23 effort, at least we think it is cooperative. So, if the
24 State Lands Commission stood firm and said we want to see no
25 scrapes, then, you know, that is something that we would
01 leave up to somebody else to decide, maybe a consensus among
02 the parties. But if the State Lands Commission said, "We do
03 not oppose scrapes anywhere in the basin, outside of State
04 Lands Commission land," then we would carry that out.
05 MR. BIRMINGHAM: That raises another subject. A couple
06 of times during your cross-examination, you referred to
07 cooperative efforts with other agencies and indicated that
08 the Department would carry out some of the proposals if
09 there were cooperative funding.
10 Can you most explain why, from the Department's
11 perspective, cooperative funding is an appropriate
13 MR. KAVOUNAS: Once again, we are not the only
14 landowner in the basin. Our lands are not the only ones
15 that would benefit. Other agencies' land would also
16 benefit. In some instances -- you know my views as to the
17 marginal benefit of the waterfowl habitat that we would
18 create. If we look at a project such as DeChambeau, and the
19 cost estimate in here, I believe, is close to three-quarter
20 million dollars without any operating costs. To me that
21 doesn't seem economically feasible. I couldn't recommend
22 that to my management.
23 So, to that effect, as a matter of fact, I would like
24 to point out that we have attempted to get cooperative
25 funding, specifically for DeChambeau.
01 Am I getting ahead of you?
02 MR. BIRMINGHAM: I was going to get to that in a
04 If I understand your response to my question, it is the
05 Department's position that other agencies with land
06 management responsibilities in the basin should bear some of
07 the responsibility for carrying out projects which will
08 benefit or further their land management purposes. Is that
10 MR. KAVOUNAS: Yeah. I think, you know, the
11 Department's responsibility to mitigate does not absolve
12 other agencies' responsibilities to manage.
13 MR. BIRMINGHAM: A moment ago you mentioned you had
14 sought outside funding. Who was responsible for seeking
15 that outside funding to carry on the DeChambeau/County Ponds
17 MR. KAVOUNAS: Mr. Brian Tillemans who is sitting on
18 this panel.
19 MR. BIRMINGHAM: Mr. Tillemans, can you describe for us
20 what you did to seek outside funding to carry out that
22 MR. TILLEMANS: Basically, we haven't really submitted
23 form applications, but we have discussed it, what is called
24 the Intermountain West Joint Venture Program, and there is a
25 local Eastern Sierra chapter. And they have identified the
01 Mono Basin as a high priority area, and they seek funding
02 through NAWCA, which is the North American Wetland
03 Conservation Act.
04 MR. BIRMINGHAM: Essentially, the Department has
05 discussed with the Intermountain -- what is the name of the
07 MR. TILLEMANS: Intermountain West Joint Venture.
08 MR. BIRMINGHAM: You have approached the Intermountain
09 West Joint Venture about obtaining funds, federal funds, to
10 help implement some of the programs that are proposed by the
11 consultant; is that correct?
12 MR. TILLEMANS: Yes. We have expressed within that
13 group, our desire to seek these funds.
14 MR. BIRMINGHAM: Have any of the other parties here in
15 this proceeding participated in those discussions?
16 MR. TILLEMANS: Yes, they have.
17 MR. BIRMINGHAM: Which parties are those?
18 MR. TILLEMANS: The Mono Lake Committee, Fish and Game,
19 and I think a Forest Service representative has been there.
20 MR. BIRMINGHAM: Did the Mono Lake Committee express
21 any view on the propriety of the DWP obtaining funds under
22 the North American Wetland Conservation Act?
23 MR. TILLEMANS: They have.
24 MR. BIRMINGHAM What was their view?
25 MR. TILLEMANS: It was at a meeting at a meeting that a
01 cohort of mine went to, and Mono Lake's attendee was Greg
02 Reise. And he expressed the inappropriateness of DWP to
03 seek those kind of funds.
04 MR. BIRMINGHAM: He expressed opposition to DWP
05 obtaining those funds?
06 MR. TILLEMANS: Yes.
07 MR. BIRMINGHAM: Did the Department of Fish and Game
08 take a position?
09 MR. TILLEMANS: I don't know if they really took a
10 position. They may have questioned, again, the
11 appropriateness of seeking the funds.
12 MR. BIRMINGHAM: You are not sure about Fish and Game?
13 MR. TILLEMANS: Right.
14 MR. BIRMINGHAM: Do you know if the Forest Service took
15 a position on whether or not it would be appropriate for
16 DWP to obtain those funds?
17 MR. TILLEMANS: I know of no position.
18 MR. BIRMINGHAM: Mr. Perrault, there were a number of
19 questions asked of you by Mr. Dodge this morning concerning
20 the facilities that would be required to return water to
21 Mill Creek from Wilson Creek. He asked you about the
22 ability of the Southern California Edison Return Ditch to
23 convey water in the winter.
24 Have you visited the return ditch during a winter
01 MR. PERRAULT: No, I have not.
02 MR. BIRMINGHAM: Were you in the Mono Basin in early
03 January of this year?
04 MR. PERRAULT: Excuse me, yes, I was.
05 MR. BIRMINGHAM: Can we declare him a hostile witness?
06 CHAIRMAN CAFFREY: I was going to ask you.
07 MR. DODGE: We will stipulate that everything conveyed
08 water, January of this year.
09 BOARD MEMBER DEL PIERO: Including major state
11 MR. PERRAULT: I guess I was thinking you were
12 referring to an earlier reference.
13 MR. BIRMINGHAM: Have you seen the Southern California
14 Edison Return Ditch convey water in the winter?
15 MR. PERRAULT: Yes, I have.
16 MR. BIRMINGHAM: Another question that was asked of you
17 yesterday --
18 BOARD MEMBER DEL PIERO: Can we give him credit for
19 that, Mr. Birmingham?
20 MR. BIRMINGHAM: You were asked a question yesterday, a
21 question by, I believe, Ms. Scoonover about DWP's ownership
22 of land within the Mill Creek floodplain. Your response to
23 that question took me by surprise. I am not sure you
24 understood the question.
25 In fact, does DWP own all of the land within the Mill
01 Creek floodplain?
02 MR. PERRAULT: No, they don't. It was late in the day
03 yesterday when she asked me that question. I was somewhat
05 MR. BIRMINGHAM: If DWP does not own all of the land
06 within the Mill Creek floodplain, then, ergo, there must be
07 other land owners; is that right?
08 MR. PERRAULT: Yes.
09 MR. BIRMINGHAM: He's all yours Ms. Scoonover on that
11 A couple of times during your responses to questions,
12 Mr. Kavounas, you left me with the impression that, in your
13 view, the Department of Water and Power is not responsible
14 for the degradation of Mill Creek. Is that your view?
15 MR. KAVOUNAS: Yes, it is.
16 MR. BIRMINGHAM: I would like to read to you from the
17 testimony of Dr. Scott Stine, which has been marked for
18 identification as R-SLC/DPR-400. On Page 2 he has a section
19 in his testimony called Historical Overview of Lower Mill
20 Creek. And it states:
21 Until the mid 19th century, Mill Creek was
22 the third largest stream in the Mono Basin.
23 After crossing the bedrock of the Sierra, it
24 flowed through a steep narrow canyon reach,
25 then through a deltaic bottomland before
01 reaching Mono Lake. (Reading.)
02 And further on he says:
03 By the 1800s, water was being diverted from
04 Mill Creek to support pasture, both to the
05 north and the south of the stream.
06 Construction of Lundy Dam around the turn of
07 the century permitted an even larger
08 diversion to the northward for hydroelectric
09 generation at Lundy Power House. (Reading.)
10 And then under a section entitled Destruction of the
11 Mill Creek Bottomland he states:
12 Throughout these early years of the diversion
13 and continuing through the present day, Mill
14 Creek continued to flow at greatly diminished
15 levels through its canyon reach, supplying
16 water to the stream side vegetation. That
17 vegetation, dense and apparently vigorous,
18 persists today. But the diminished flows
19 seldom reached the bottomland which received
20 water only during occasional spills of Lundy
21 Reservoir. By early in the century, most of
22 the riparian vegetation on the bottomland had
23 desiccated and died. With the channel no
24 longer protected by vegetation, spills from
25 the reservoir scoured bottomland, creating a
01 single, wide wash. Flow that reaches the
02 Mill Creek bottomland today follows the
03 single wash, the multiple channels that once
04 distributed flow across the bottomland remain
05 in place and intact, but they are plugged at
06 the heads by the sediment generated by the
07 cutting of the wash. (Reading.)
08 And then further he says:
09 Scattered over the bottomland are downed
10 trunks of the cottonwoods that were killed by
11 the dewatering that began in the 1870s.
13 The Department of Water and Power, was it in the Mono
14 Basin in the 1870s?
15 MR. KAVOUNAS: Not to my knowledge.
16 MR. BIRMINGHAM: So, is it your understanding that the
17 desiccation of Mill Creek watershed occurred prior to the
18 Department's diversions of water out of the Mono Basin for
20 MR. KAVOUNAS: Yes.
21 MR. BIRMINGHAM: The Department of Water and Power's
22 knowledge is that in the Rush Creek and Lee Vining
23 watersheds it has had a negative impact on the environment
24 there. The Department recognizes that, doesn't it?
25 MR. KAVOUNAS: Yes. Above and beyond that, irrigation
01 and grazing, prior to the Department's presence.
02 MR. BIRMINGHAM: In this particular case, with respect
03 to Mill Creek and the destruction described by Dr. Stine's
04 testimony, is it the Department's position that it is not
05 responsible for that destruction?
06 MR. KAVOUNAS: That's correct.
07 MR. BIRMINGHAM: Who would be responsible for that
09 MR. KAVOUNAS: I am not -- I don't know who. I know
10 who it isn't. You know, the Department has simply continued
11 historical practice of irrigation on the land it owned, the
12 Thompson Ranch.
13 MR. BIRMINGHAM: Dr. White, yesterday Ms. Scoonover
14 asked you about whether the Department of Water and Power,
15 as part of its Waterfowl Habitat Restoration Program
16 monitoring, considered monitoring Ctenocladus?
17 Do you recall that question?
18 BOARD MEMBER DEL PIERO: Ctenocladus.
19 MR. BIRMINGHAM: Excuse me, Ctenocladus. I can't read
20 my own writing, even with my glasses.
21 DR. WHITE: Ctenocladus.
22 MR. BIRMINGHAM: What is Ctenocladus?
23 DR. WHITE: Ctenocladus is a filamentous, algal species
24 that grows on the bottoms of streams, stringy, threaded
25 algas forms of matter.
01 MR. BIRMINGHAM: Grows on the bottom of Mono Lake?
02 DR. WHITE: Yes, near shore, shallow water.
03 MR. BIRMINGHAM: Do you think it would be appropriate
04 to, as part of the habitat restoration monitoring program,
05 monitor Ctenocladus?
06 DR. WHITE: I think it would have limited value for two
07 reasons. I know of -- I have seen no data that birds feed
08 upon it. In a controlled laboratory expert that was done at
09 U.C. Irvine by Tim Bradley, who is on the faculty there, and
10 David Herbst, who has done some work for the EIR, shows that
11 Ctenocladus was an inferior food for flies. They do much
12 better on the diatoms that grow on the bottom of Mono Lake,
13 another Chrysophyta. So, the birds don't eat it and the
14 flies don't do well on it, but I think it would be of
15 particular value for the purpose of our monitoring plan.
16 MR. BIRMINGHAM: Can you explain for me the basis of
17 your opinion that for purposes of this monitoring plan, the
18 Waterfowl Habitat Restoration Monitoring Plan, that
19 monitoring alkali flies is not appropriate?
20 DR. WHITE: Sure. I believe that the recommendation
21 that the experts made regarding the value of monitoring
22 alkali flies as bird food was based on unfamiliarity with
23 the background data. They state that a baseline of alkali
24 fly abundance is available, and I don't believe that there
25 is a baseline for alkali flies as a bird food. I don't
01 believe we have a baseline for alkali flies as the birds see
03 I would like to quote just one line from Auxiliary
04 Report Number 8. This is what I passed around yesterday.
05 What we do have is a historical -- we have some historical
06 data on the abundances of the larvae and the pupae as they
07 exist on the bottom of the lakes, submerged. And on Page 21
08 of the report it is stated:
09 Though larvae and pupae clearly become
10 aggregated on two of the substrates, there
11 are apparently no birds able to take
12 advantage of this submerged food source.
14 I think that may be a little bit strong, but it
15 supports my contention that the historical baseline that we
16 have is largely unrelated to what the bird see as food. And
17 we also have no evidence, no data, historical data, on the
18 adult flies. And the preceding line on that page states:
19 Adult flies, aggregating on shores around
20 much of the perimeter of the lake, are focal
21 points for feeding by many shore birds.
23 And we don't have any historical data on that. Another
24 important source of alkali flies to the birds are the
25 displaced individuals that float around on the water that
01 drift. And the graph that I passed around yesterday shows
02 how difficult it is to get good numbers, good abundance
03 numbers. We only have one-years worth, and those were
04 inadequate to demonstrate a change in abundance in the drift
05 over several seasons when the density on the bottom went
06 from, say, less than 100 to 20 or 30,000. We were unable to
07 detect that difference in the drift. So, I doubt it would
08 be likely we would be able to pick up annual differences
09 that are going to be much less than that.
10 That is my reason. I don't think we have a historical
11 baseline. We do have a historical baseline for shrimp, and
12 we do understand how it interacts with food and its physical
13 and chemical environment. We don't know those things for
14 the fly. And for that reason, I think that the shrimp are a
15 much better choice as a monitoring tool.
16 MR. BIRMINGHAM: You are suggesting that it wouldn't be
17 of value to actually go out and study the alkali fly to gain
18 the information which you just said we don't have?
19 DR. WHITE: I think it is an interesting scientific
21 MR. BIRMINGHAM: But it is not related to waterfowl
22 habitat monitoring?
23 DR. WHITE: No, it's not directly related to
24 monitoring. You would have to do that to see if the alkali
25 fly could every serve as a monitoring tool.
01 MR. BIRMINGHAM: I never want to disappoint Mr. Dodge.
02 Yesterday, we agreed on something. Today, he never
03 wants to disappoint me. Tomorrow, peace in the Middle
05 CHAIRMAN CAFFREY: You don't have to wait for that
06 third option to confuse us.
07 MR. BIRMINGHAM: Mr. Kavounas, Mr. Dodge asked you a
08 question about a statement contained on Page 98 of the
09 Appendix to the Mono Basin Waterfowl Habitat Restoration
10 Plan, and it was a statement by the three consultant who
11 prepared the plan.
12 Restoration of all potential waterfowl
13 habitat on Mill Creek does not appear --
15 Excuse me, I am looking at the wrong page. Page 90, I
16 guess. This is with respect to the County ponds. And Mr.
17 Dodge asked you, in your opinion, the words that are used on
18 Page 90 represented high praise for the rewatering of the
19 completion of that aspect of the scientists' proposal, and
20 you said, in your opinion, it didn't.
21 And then Mr. Dodge said that I would ask the question
22 about why, in your view, these words don't represent
23 enthusiastic support.
24 Why, in your opinion, don't these words represent
25 enthusiastic support?
01 MR. KAVOUNAS: I would like to -- because, in my mind,
02 it is not clear how this is any different than any other
03 waterfowl habitat. I don't understand why this would be
04 critical. I think this is an opinion offered by the three
05 scientists. You know, they don't seem to suggest why so
06 critical. The fact that Phase I to date has not added any
07 waterfowl habitat doesn't seem to phase them. No pun
08 intended. To me it's just another recommendation, like all
09 the rest. I don't understand why this would be critical.
10 The only adjectives I have seen is due to the fact that
11 the Department of Water and Power's dedication of its
12 irrigation right would be a major and significant first
13 step. That is the only one that I have seem that seemed, to
14 me, to place some value on a measure. I don't understand
15 why this would be critical.
16 MR. BIRMINGHAM: Did you discuss this with Dr. Jehl?
17 MR. KAVOUNAS: Yes, I did. And it is my opinion that
18 he shares the same belief.
19 MR. BIRMINGHAM: With respect to the program, the
20 DeChambeau Pond Program, you made reference to a well that
21 currently is being powered with propane; is that correct?
22 MR. TILLEMANS: That's correct.
23 MR. BIRMINGHAM: That well used to extract groundwater
24 to fill the pond?
25 MR. TILLEMANS: It is my understanding, yes.
01 MR. BIRMINGHAM: Has that well always be powered with
03 MR. TILLEMANS: No. That was put in as a component of
04 the project. And it was a joint project previously
05 completed. It is my understanding it ran about 495,000,
06 something like that.
07 MR. BIRMINGHAM: When you say "495,000," that was the
08 cost of the project?
09 MR. TILLEMANS: Yes. Jointly funded with Ducks
10 Unlimited and Forest Service, I think, Mono Lake Committee,
11 and Caltrans.
12 MR. BIRMINGHAM: To your knowledge, has the cost of
13 operating that well contributed to the modification of that
15 MR. TILLEMANS: From what I heard, the cost of
16 operating it is rather expensive, and the Forest Service
17 cannot maintain it because of that.
18 MR. BIRMINGHAM: Finally, Mr. Del Piero asked the panel
19 a question about environmental analysis that has been done
20 concerning the return of flows to both Wilson Creek and
21 Mill Creek. You referred to a number of comments that
22 weren't a formal environmental analysis, but did include
23 some discussion of the environmental impacts.
24 Is it correct, Mr. Kavounas, that Emilie Strauss also
25 submitted comments on the proposed rewatering of Mill Creek?
01 MR. KAVOUNAS: I recall those.
02 MR. BIRMINGHAM: Those are contained in the document
03 that has been submitted and introduced into evidence, Mono
04 Basin comments in response to comments on the draft Stream
05 Restoration Plan and the Waterfowl Habitat Restoration Plan?
06 MR. KAVOUNAS: It should have been.
07 MR. DODGE: Objection, Mr. Chairman; those have not
08 been produced into evidence.
09 MR. KAVOUNAS: Part of our plan.
10 CHAIRMAN CAFFREY: We are at the half-hour mark, but
11 obviously we have to get an answer to this question. I want
12 to acknowledge that we are keeping track.
13 MR. BIRMINGHAM: This is my last question.
14 CHAIRMAN CAFFREY: I understand that and appreciate
15 that, Mr. Birmingham.
16 MR. BIRMINGHAM: I believe that it was introduced into
17 evidence yesterday as R-DWP-21.
18 MR. DODGE: I apologize. I thought you referring to
19 something in the People from Mono Basin.
20 CHAIRMAN CAFFREY: Thank you for that clarification,
21 Mr. Birmingham.
22 MR. BIRMINGHAM: Mr. Del Piero, those comments are at
23 C-179 of that document.
24 BOARD MEMBER DEL PIERO: C-179?
25 MR. BIRMINGHAM: Yes.
01 BOARD MEMBER DEL PIERO: Thank you.
02 CHAIRMAN CAFFREY: Thank you very much, sir.
03 I believe that now takes us to recross. I'll go down
04 the list.
05 U.S. Forest Service.
06 UNIDENTIFIED VOICE: Withdraw.
07 CHAIRMAN CAFFREY: Bureau of Land Management.
08 UNIDENTIFIED VOICE: No, thank you, Mr. Chairman.
09 CHAIRMAN CAFFREY: People for the Preservation of Mono
11 MS. BELLOMO: No questions. Thank you.
12 CHAIRMAN CAFFREY: Arcularius Ranch.
13 Richard Ridenhour.
14 California Trout, Mr. Roos-Collins.
15 MR. ROOS-COLLINS: No questions, Mr. Chairman.
16 CHAIRMAN CAFFREY: Department of Fish and Game, Ms.
18 MS. CAHILL: No questions.
19 CHAIRMAN CAFFREY: Ms. Scoonover representing State
20 Lands and California Department of Parks and Recreation.
01 RECROSS EXAMINATION
02 BY STATE LANDS COMMISSION AND
03 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
04 BY MS. SCOONOVER
05 MS. SCOONOVER: Mr. Kavounas, in your discussion with
06 Mr. Birmingham, you agreed that the Department of Water and
07 Power had some responsibility for damage caused from
08 incision at Rush and Lee Vining Creeks.
09 Is that correct?
10 MR. KAVOUNAS: I don't think so.
11 MS. SCOONOVER: Would you agree that the lowering of
12 Mono Lake contributed to incision in the Rush and Lee Vining
13 Creek deltas?
14 MR. KAVOUNAS: I have no opinion on that.
15 CHAIRMAN CAFFREY: I'm sorry, I didn't hear the answer.
16 MR. KAVOUNAS: I have no opinion on incision.
17 MS. SCOONOVER: Mr. Kavounas, would you agree with me
18 that the lowering of Mono Lake was due to, at least
19 partially, to the Department of Water and Power exports?
20 MR. KAVOUNAS: Yes.
21 MS. SCOONOVER: Are you aware of the impacts of lake
22 lowering on Mill Creek?
23 MR. KAVOUNAS: I am not aware.
24 MR. FRINK: Mr. Chairman, I would object to the scope
25 of the recross examination going beyond the scope of recross
01 examination going beyond the scope of redirect.
02 MS. SCOONOVER: Mr. Chairman, I believe Mr. Birmingham
03 asked about the impacts to Mill Creek caused by the
04 Department of Water and Power as well as those caused by
05 other entities. That is the nature and scope of my
07 MR. BIRMINGHAM: I have to agree with Ms Scoonover. I
08 think this is fair game, given my questions of Mr. Kavounas.
09 I will also acknowledge in the record there is testimony
10 from Dr. Stine that is already in evidence that the lowering
11 of the lake actually did cause incision at the delta of Mill
12 Creek. I think that is the point Ms. Scoonover is trying to
13 get at.
14 CHAIRMAN CAFFREY: I do recall Mr. Kavounas' answer
15 with regard to, at least a general answer, with regard to
16 degradation, if I may use that term, so you may proceed with
17 the questioning.
18 MS. SCOONOVER: It may be necessary, Mr Chairman, to
19 swear Mr. Birmingham in after all.
20 MR. BIRMINGHAM: I'm only referring to evidence in the
21 record, unlike my --
22 MR. DODGE: The one factual statement I made was that
23 that dedication ceremony was in April. I am sitting here
24 saying to myself I went over Tioga Pass to get there. It
25 wasn't in April.
01 CHAIRMAN CAFFREY: I won't swear you in as yet.
02 MS. SCOONOVER: Mr. Kavounas, the waterfowl
03 recommendations made by the three scientists, who were
04 employed by the Department of Water and Power, weren't,
05 however, based on DWP's caused damage to Mill Creek, were
07 Let me rephrase it.
08 The waterfowl scientists' plan referred to a lake
09 elevation of 6405 as being necessary to restore the
10 waterfowl habitat at Mono Lake.
11 Do you recall that?
12 MR. KAVOUNAS: Not specifically. If you say so, I am
13 sure we can find a reference to it.
14 MS. SCOONOVER: D-1631, Mr. Kavounas, referred to the
15 necessity of the Department of Water and Power to create a
16 Waterfowl Habitat Restoration Plan because the targeted lake
17 elevation would not restore all of the habitat, waterfowl
18 habitat, previously lost.
19 Do you recall that?
20 MR. KAVOUNAS: Yes, I do.
21 MS. SCOONOVER: So, the waterfowl scientists,
22 therefore, were looking to restore waterfowl habitat
23 throughout the Mono Basin in ways other than higher lake
25 Is that accurate?
01 MR. KAVOUNAS: I would have to assume what they were
03 MS. SCOONOVER: Did the waterfowl scientists
04 recommend, as their number one priority, the raising of Mono
05 Lake to the targeted lake elevation identified in D-1631?
06 MR. KAVOUNAS: I believe they recognized that as the
07 most significant thing that would benefit waterfowl in the
09 MS. SCOONOVER: The waterfowl scientists' second
10 highest priority was what, Mr. Kavounas?
11 MR. KAVOUNAS: It was rewatering of Mill Creek.
12 MS. SCOONOVER: In the recommendations for rewatering
13 of Mill Creek, Mr. Kavounas, did the waterfowl scientists
14 specifically call out rewatering of the bottomland
15 distributary channels?
16 MR. KAVOUNAS: To my recollection they recommended
17 reopening the distributaries.
18 MS. SCOONOVER: Does the Department of Water and
19 Power's plan call for the reopening of the distributary
21 MR. KAVOUNAS: Not by mechanical means.
22 MS. SCOONOVER: Mr. Kavounas or Mr. Tillemans, was Dr.
23 Joe Jehl a part of the TAG process?
24 MR. TILLEMANS: No, he wasn't. He was suggested in a
25 list that was sent to the waterfowl experts to talk to, and
01 he was never contacted.
02 MS. SCOONOVER: Are any of Dr. Jehl's opinions to which
03 you referred, Mr. Kavounas, present anywhere in the record
04 before the Water Board?
05 MR. KAVOUNAS: Not as direct quotes.
06 MS. SCOONOVER: Thank you.
07 Dr. White, as much as I'd love to continue our earlier
08 colloquy, I think it perhaps better not.
09 Thank you.
10 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
11 Mr. Dodge.
13 RECROSS EXAMINATION
14 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE
15 BY MR. DODGE
16 MR. DODGE: Do you plan to bring back Joe Jehl in
17 rebuttal? That is a serious question.
18 MR. KAVOUNAS: Mr. Dodge, we contacted Mr. Jehl, to
19 have him as part of our panel, and he is in Washington this
21 MR. DODGE: If someone will commit to me that Joe Jehl
22 will be here, I am going to limit my questions of this
24 CHAIRMAN CAFFREY: Mr. Birmingham, do you have an
25 answer to that?
01 MR. BIRMINGHAM: No, I don't. A lot depends on when
02 the hearing is set. Dr. Jehl's availability.
03 CHAIRMAN CAFFREY: We have -- if I tell you now,
04 obviously, it is subject to adjustments until the notice is
05 up. But right now we are looking at the 13th and the 14th
06 of February as the earliest possible time when we can do
08 BOARD MEMBER DEL PIERO: Somebody is having a heart
10 CHAIRMAN CAFFREY: That is Thursday and Friday, I
12 MR. BIRMINGHAM: I have a court appearance that was
13 actually this morning that we have had continued to the 13th
14 in an action Bell Marine Keys Municipal Water District, an
15 action pending in Marin Superior Court. That is the heart
17 CHAIRMAN CAFFREY: We will take another look at dates.
18 BOARD MEMBER DEL PIERO: It's always subject to
20 CHAIRMAN CAFFREY: That is why we actually don't
21 announce it until it's officially announced. We'll do our
23 MR. DODGE: Having had the opportunity to cross-examine
24 Joe Jehl in 1990, I can assure everyone that he will enliven
25 the proceedings considerably.
01 BOARD MEMBER DEL PIERO: I was personally looking for
02 to it.
03 MR. DODGE: Why don't I pass on any questions of Mr.
04 Kavounas? If Dr. Jehl is going to attend, I will have some
05 questions for him, and I will reserve the right to ask Mr.
06 Kavounas questions if Dr. Jehl doesn't show up.
07 CHAIRMAN CAFFREY: Anybody have a problem with that?
08 Makes sense.
09 That is all you have, then, Mr. Dodge?
10 Thank you, sir.
11 That completes the recross. It does not complete the
12 recross, because staff has not yet asked any questions.
13 Staff, please.
15 RECROSS EXAMINATION
16 BY BOARD STAFF
17 MR. CANADAY: Mr. Kavounas or Mr. Tillemans, in your
18 testimony you talk about outside funding for the
19 DeChambeau/County Pond complex. One potential source is the
20 North American Wetland Conservation Act. That is a matching
21 fund; is that correct. In other words, you would apply for
22 a grant and the City would match a certain amount?
23 MR. KAVOUNAS: To my acknowledge, yes.
24 MR. CANADAY: And the City is willing to, as they seek
25 outside funding, is not opposed to matching funds?
01 MR. KAVOUNAS: That is correct.
02 MR. CANADAY: Thank you.
03 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
04 Anything else from staff?
05 MR. FRINK: No.
06 CHAIRMAN CAFFREY: Any questions from the Board
08 Thank you.
09 Do you wish, Mr. Birmingham, to offer your exhibits?
10 MR. BIRMINGHAM: Yes, I do. I got to 21 before Mr.
11 Dodge realized what it was.
12 The Department of Water and Power would offer, if I may
13 refer to them simply by number as opposed to the entire
14 reference, Exhibits 9 and 10, Exhibits 32, 33, 34 and 35,
15 and then Exhibits 64 and 65, which are the maps that have
16 been referred to.
17 CHAIRMAN CAFFREY: If there is no objection, those will
18 be entered into the record.
19 MR. BIRMINGHAM: Thank you very much.
20 CHAIRMAN CAFFREY: Mr. Canaday, you have a
22 MR. CANADAY: I just have a comment when you are done.
23 CHAIRMAN CAFFREY: You are were going to say, Mr.
25 MR. BIRMINGHAM: That concludes our presentation.
01 CHAIRMAN CAFFREY: Thank you, sir. Want to thank
02 members of the panel: Mr. Tillemans, Mr. Kavounas were
03 there for well two full working days. We take a night and a
04 morning. We appreciate your diligence.
05 Thank you very much, gentlemen.
06 To all of you.
07 Thank you, Mr. Birmingham. And to all the parties.
08 All right. Mr. Canaday.
09 MR. CANADAY: Mr. Caffrey, State Board staff would like
10 to extend its appreciation to the staff of LADWP for the
11 development of the plan and their bringing forward
12 testimony. While we recognize there are differences of
13 opinions how those plans should be carried out, and they are
14 the subject of this hearing, nevertheless, the staff of
15 Department of Water and Power has made tremendous efforts to
16 comply and provide something for your review and your
17 consideration in this matter. We do appreciate their
19 MR. KAVOUNAS: Thank you for your kind words, Mr.
21 CHAIRMAN CAFFREY: Thank you, Mr. Canaday, for your
23 It is 25 minutes to 12. I believe next we would go to
24 is U.S. Forest Service. Is that correct?
25 Let me ask Mr. Gipsman, sir, do you plan to take the
01 entire hour that is available to you?
02 MR. GIPSMAN: No. I think direct would take about ten
04 CHAIRMAN CAFFREY: Obviously, you will take the time
05 you need within the hour. I was just wondering if we should
06 take an early break. I think it would be appropriate if
07 you're only ten minutes. Let's go now, then.
08 (Luncheon break taken.)
01 AFTERNOON SESSION
04 DIRECT EXAMINATION
05 BY UNITED STATES FOREST SERVICE
06 BY MR. GIPSMAN
07 MR. GIPSMAN: Good morning, Mr. Chairman, Members of
08 the Board. Our appearance here will be brief. We have just
09 one witness, and that is Roger Porter, who is the manager
10 for the Mono Basin National Forest Scenic Area.
11 Mr. Porter has a prepared statement to make, and I
12 personally saw him take the oath.
13 CHAIRMAN CAFFREY: You saved me the trouble of asking
14 the question.
15 Good morning, Mr. Porter, welcome.
16 MR. PORTER: Good morning, Mr. Chairman.
17 I have been scenic area manager, in terms of my
18 qualifications, since 1992.
19 CHAIRMAN CAFFREY: Can you all hear Mr. Porter in the
21 Pull up the mike a little closer. Thank you, sir.
22 MR. PORTER: As scenic area manager, I am responsible
23 for providing the coordination and planning for all
24 activities that occur on Forest Service land in the Mono
25 Basin. I have a degree in biology and I have a year of
01 graduate in forestry. I have worked with the Forest Service
02 since 1971. I have served in both staff positions and
03 administrative positions.
04 My testimony today is primarily a summary of comments
05 that were already submitted to the Board on April 2nd of
06 1996, as comments to the draft Waterfowl and Stream
07 Restoration Plans. Enclosed is one example, USFS Exhibit 1,
08 which are comments that were generated by Forest Service
09 specialists in regards to the two plans.
10 In a cover letter, accompanying those comments, Dennis
11 Martin, the Inyo National Forest Service Supervisor,
12 highlighted those issues which were considered most
13 important to the Forest Service. Those included financing,
14 restoration of Mill Creek, coordinating with Southern
15 California Edison, and the need to provide adequate channel
16 maintenance flows.
17 Although the Forest Service supports attempts by Los
18 Angeles Department of Water and Power to secure outside
19 financing restoration projects, the Inyo National Forest
20 believes that DWP should bear the full responsibility for
21 the financing, the implementation, the monitoring, and the
22 operating and maintenance costs that are now needed as a
23 result of past diversion practices.
24 Forest Service doesn't believe that approval of
25 projects should be contingent upon the success of securing
01 outside financing.
02 I also believe, in terms of financing, that we have
03 somewhat of an issue with what we perceived, anyway, as
04 ambiguous wording as to what it is DWP will actually
05 finance. As an example, the burns, DWP has stated that, if
06 we desire to burn on Forest Service land for purposes of
07 creating waterfowl habitat, that that is an activity of the
08 land management agency and should be the responsibility of
09 that agency.
10 We agree to a certain extent. However, we have to
11 recognize that some of the things that now need to be done
12 are not things that the Forest Service would do as a normal
13 part of its operations. It's being suggested as a direct
14 result of past practices by DWP in diverting water. It is
15 not something we would otherwise probably be doing.
16 Other examples in terms of financial issues are, for
17 example, the County Ponds, which today we've heard quite a
18 bit about. That had close to a $750,000 price tag. That is
19 a lot of money. But we would certainly like to see DWP
20 explore other ways of doing the County Pond Project that may
21 be significantly less expensive.
22 For example, it's the responsibility -- would be the
23 responsibility of DWP to provide a supply of water for the
24 County Ponds located below DeChambeau Ponds. They're
25 certainly free to consult with us about the water that we
01 already have available. The estimate for drilling wells for
02 the County Ponds was, I believe, somewhere around half the
03 cost of the project. Well, we already have one well drilled
04 that provides 500 gallons per minute. So, we would like to
05 see those kinds of things further explored.
06 With regards to Mill Creek, the Inyo National Forest
07 and the Mono Basin National Forest Scenic Area Comprehensive
08 Management Plan both support restoration of the Mill Creek
09 to restore critical riparian and wetland habitat. Mill
10 Creek restoration is a key step in providing for a healthy
11 ecosystem in the North Basin.
12 However, the Forest Service does feel that prior to
13 making decisions on Mill Creek and Wilson Creek that some
14 sort of comprehensive watershed analysis should be
15 conducted. And we are a little concerned that that may not
16 happen in that there is -- you can break the issue down in
17 two ways. You can address what does it mean if DWP takes 16
18 cfs of water during the winter and puts it in Mill Creek.
19 That is not, to us, what we would consider a comprehensive
20 watershed analysis.
21 What we would like to see is address the entire North
22 Basin, which primarily means address Mill Creek and Wilson
23 Creek as to the relative values and the merits of where the
24 water should go. And that is a different analysis than just
25 what is the effect of diverting 16 cfs through the return
01 ditch during the middle of winter. We think that with that
02 comprehensive analysis it then provides all of us with the
03 information, all of us that have water rights, with the
04 information that is needed in order for us to make
05 intelligent decisions.
06 Southern California Edison controls flows on most all
07 of the creeks within the basin, with the exception of Wilson
08 Creek. We feel that not all options with Southern
09 California Edison have currently been explored. We know
10 that DWP has actively talked with Southern California Edison
11 with regard to whether or not there is any way for them to
12 contribute to solving some of the problems that exist in the
13 basin with regards to channel maintenance flows, increasing
14 those, timing of releases. We do believe that there are a
15 couple of options that haven't, to the best of my knowledge,
16 been discussed with SCE yet.
17 For example, FERC is in the process of coming close to
18 issuing a license for both Mill Creek, which is one of the
19 hydro power plants, and for Rush Creek and also, shortly
20 thereafter, Lee Vining Creek. Part of what we have through
21 the TAG meetings heard SCE say is that their flexibility,
22 for lack of a better word, is somewhat limited by the
23 conditions of their FERC license.
24 MR. BIRMINGHAM: Excuse me, Mr. Caffrey.
25 CHAIRMAN CAFFREY: Yes, Mr. Birmingham.
01 MR. BIRMINGHAM: The witness is going well beyond the
02 scope of his written direct examination. I have no
03 objection to going beyond the scope to a limited degree, but
04 now he's well, well beyond what is contained in his written
05 direct examination, and, in fact, is getting in some
07 I wonder if we could limit the direct testimony to what
08 was offered in writing?
09 CHAIRMAN CAFFREY: Yes. That is pertinent and
10 essential. And, gentlemen, please keep your testimony
11 within the scope of what you have submitted as your exhibits
12 and as your testimony.
13 MR. PORTER: I can do that, sir.
14 MR. DODGE: Excuse me, it looks to me like Point 5 on
15 his statement is exactly what he was talking about.
16 CHAIRMAN CAFFREY: The level of specificity of -- I was
17 just giving it as an admonishment. I was not referring to
18 any particular words. And if Mr. Birmingham has something
19 in particular he wants to mention, I'd certainly listen to
21 MR. BIRMINGHAM: Mr. Dodge is correct to the extent
22 that Paragraph 5 talks about Southern California Edison.
23 But what the witness is now doing is responding to evidence
24 submitted by DWP concerning what it has done with respect to
25 trying to enlist the assistance of Southern California
01 Edison, which -- what he says on Paragraph 5, is that
02 Southern California Edison has control of the flows in its
03 watershed and that they should be consulted. We agree with
04 that. But he is not saying that DWP may not have done
05 enough, which I think is rebutting what DWP has already
07 CHAIRMAN CAFFREY: Mr. Gipsman, I agree with Mr.
08 Birmingham that that seems to be outside the scope. I
09 realize your witness is not attorney, but -- I am sorry, do
10 you have an answer to that?
11 MR. GIPSMAN: I don't think it is that far afield. I
12 don't think it makes a deference. We may get these
13 questions on cross, anyway.
14 CHAIRMAN CAFFREY: That is what I was thinking. I
15 think you would probably get to it somewhere else in the
17 MR. BIRMINGHAM: If they wouldn't have before, they
18 will now.
19 CHAIRMAN CAFFREY: Astute observation.
20 Okay. Please continue, Mr. Porter.
21 MR. PORTER: We also believe that adequate channel
22 maintenance flows for Rush Creek, Lee Vining Creek, Walker
23 and Parker are critical to the management of federal lands.
24 As such, the Inyo National Forest certainly supports the
25 peak channel maintenance flows as recommended by the stream
01 scientists. And that concludes my testimony.
02 CHAIRMAN CAFFREY: Thank you very much, sir.
03 All right. Is there anything else you wish to add.
04 MR. GIPSMAN: No, there isn't. We are ready for cross.
05 Do you want to do that before lunch or after?
06 CHAIRMAN CAFFREY: It looks like it must be about 12
07 minutes to 12. Maybe we can get a little jump on the lunch
08 crowds. Why don't we break now and come back at 1:00 and
09 start with the cross.
10 Thank you.
11 (Luncheon break taken.)
01 AFTERNOON SESSION
03 CHAIRMAN CAFFREY: Let's resume the hearing.
04 If you will indulge me a moment, Mr. Birmingham.
05 Let's have a little discussion about some dates for
06 continuance. Mr. Del Piero and I were discussing this
07 morning the possibility of the 13th and the 14th of February
08 as continuation dates. We noted that a couple of you had
09 some problems with that. We want to avoid, both for our
10 sake and yours, doing this one day at a time. We would like
11 to get blocks of days. I am sure it conveniences you all,
12 as it does us. The next best thing we could come up with
13 would Tuesday, Wednesday, and Thursday, that is February
14 24th, 25th, and 26th. Hopefully, that won't cause a
16 MS. GOLDSMITH: Tuesday is the 25th.
17 CHAIRMAN CAFFREY: I am sorry, that is right. 24th,
18 25th, 26th; that is a Monday, Tuesday, and a Wednesday.
19 How is that for everybody?
20 That is not possible?
21 MR. ROOS-COLLINS: Mr. Chairman, I am sorry, I am not
22 available on those dates.
23 CHAIRMAN CAFFREY: That is really about all --
24 MR. DODGE: It seems to the 13th and the 14th, there
25 were a couple of lawyers who had hearings. Did they try to
01 get someone else to cover them?
02 CHAIRMAN CAFFREY: The same question could go -- with
03 all due respect, the same question could go for Mr.
04 Roos-Collins, as well.
05 MR. DODGE: Sure, sure.
06 CHAIRMAN CAFFREY: Does anybody have any options
07 because after that -- I hate to be -- I would like to get
08 your agreement. I don't want to be dogmatic about it, but
09 after that we are getting into some heavy scheduling for the
10 Board and some inability to meet for maybe quite a while.
11 MR. ROOS-COLLINS: Mr. Chairman.
12 CHAIRMAN CAFFREY: Mr. Roos-Collins.
13 MR. ROOS-COLLINS: Are those two blocks the only blocks
14 that are available for this Board in February?
15 CHAIRMAN CAFFREY: Actually, pretty much so because,
16 quite frankly, those two blocks are built around Mr. Del
17 Piero and I, that have a great deal of interest in this
18 matter, and still is providing needed flexibility for the
19 other Board Members. The constant will be Mr. Del Piero and
20 myself. I will and they all have a great deal of interest
21 in it.
22 MR. ROOS-COLLINS: Mr. Chairman, since Mr. Birmingham
23 has adjusted his schedule once for the case now scheduled
24 for February 12th and 13th, I will attempt to do the same
25 for my commitments on February 24th through 26th.
01 CHAIRMAN CAFFREY: That is very much appreciated.
02 MR. ROOS-COLLINS: I withdraw my objections.
03 CHAIRMAN CAFFREY: I very much appreciate that. I will
04 tell you what we are going to do, we can all help each other
05 out by -- I don't mean to apply that we are going to use up
06 all those three days. If we can do it in less time, that is
07 certainly desirable for all of us.
08 MR. DODGE: Mr. Chairman, I can be here on those three
09 days, 24th, 25th and 26th. One of my prime witnesses, Dr.
10 Reid of Ducks Unlimited informed that he is in Asia until
11 March 5th. So, I would request the opportunity to present
12 Dr. Reid at some time. But I am happy to go forward on the
13 24th, 25th, and 26th.
14 CHAIRMAN CAFFREY: You're asking for an additional
15 hearing day?
16 MR. DODGE: It would have to be that. It could be half
17 a day, if that is all that is left. He is leaving on the
18 20th and he is returning on March 5th. I informed Mr. Frink
19 of this yesterday.
20 MR. BIRMINGHAM: I wonder if we can do with Dr. Reid
21 what we did with Mr. Vestal, and that would be --
22 CHAIRMAN CAFFREY: Which was?
23 MR. BIRMINGHAM: In the original hearing which was to
24 take a video deposition of the witness because of his
25 unavailability. And then that videotape was viewed by
01 Members of the Board.
02 CHAIRMAN CAFFREY: That would be agreeable to me.
03 Mr. Frink, any problem with that?
04 MR. FRINK: I have no problem.
05 CHAIRMAN CAFFREY: I have no problem with that if that
06 is agreeable to you, Mr. Dodge.
07 MR. DODGE: I would prefer to have Dr. Reid here in
08 person. Let me suggest this. I think this is a fair
09 compromise. If we are completed with everything on the
10 24th, 25th, and 26th, in other words, the whole hearing is
11 done, then, by all means, let's not reconvene. We will have
12 a videotape of Reid.
13 I suspect that, based on the fact there is going to be
14 rebuttal, that we were not going to be done. Therefore, I
15 would present Dr. Reid as part of my direct examination when
16 next we meet.
17 CHAIRMAN CAFFREY: As part of your direct examination
18 for some time after --
19 MR. DODGE: The 24th, 25th, 26th.
20 CHAIRMAN CAFFREY: Let me try something else.
21 Ms. Cahill.
22 MS. CAHILL: I was just wondering, I know we didn't
23 want to do one day at a time, but if the 14th was available,
24 whether we could do Dr. Reid on the 14th.
25 CHAIRMAN CAFFREY: That is what I was about to get to.
01 Was the 13th that was the problem for you?
02 MR. BIRMINGHAM: Yes, it was.
03 CHAIRMAN CAFFREY: That leaves us with a possibility of
04 the fourteenth. There was another day, also, which was
05 February the 18th.
06 Would either of those days work for your witness?
07 MR. DODGE: The 14th and 18th?
08 CHAIRMAN CAFFREY: Of February. Would either one of
09 those days work for your witness, Mr. Dodge?
10 MR. DODGE: We are going to call right now and find
11 out. CHAIRMAN CAFFREY: Mr. Roos-Collins, is that a
12 problem for you?
13 MR. ROOS-COLLINS: You are considering the 14th as a
14 say for the Mono Lake Committee presentation of Dr. Reid?
15 CHAIRMAN CAFFREY: No. Actually, what I was just
16 suggesting is when I opened up this afternoon's session, I
17 stated that we were trying to avoid having these hearings or
18 these continuances one day at a time, and I am trying to do
19 it in blocks of days. I didn't mention any dates until just
20 a moment ago that were available one day at a time. Those
21 two are the 14th and the 18th. That is at the convenience
22 of the Board. I didn't get a chance to ask any of you
23 that. That would be for just a full hearing day, continue
24 at that time.
25 We would accommodate somehow -- if we weren't in some
01 direct testimonial situation for Mr. Dodge, do it all on his
02 own, maybe we could bring that to the table at that time.
03 Mr. Birmingham.
04 MR. BIRMINGHAM: My availability on the 13th is in the
05 morning. I have a hearing in Marine County, as I mentioned,
06 that was originally scheduled for this morning. I should be
07 back in Sacramento by early afternoon. Perhaps what we can
08 do is plan on starting early in the afternoon on the 14th
09 and going --
10 CHAIRMAN CAFFREY: On the 13th?
11 MR. BIRMINGHAM: On the 13th, excuse me, and then going
12 over to the 14th and put Dr. Reid on on the 14th.
13 CHAIRMAN CAFFREY: That would work.
14 Would that work for you.
15 MR. DODGE: I can be here.
16 CHAIRMAN CAFFREY: You are still calling. I'm sorry.
17 MS. BELLOMO: Chairman Caffrey.
18 CHAIRMAN CAFFREY: Ms. Bellomo, I'm sorry, I didn't get
19 a chance to hear from you yet.
20 MS. BELLOMO: I will not be able to be here the week of
21 the 10th because of my employment. But I am available the
22 entire week of the 17th and the 24th. If you were just
23 going to have one witness and it was Mr. Reid, I did have
24 cross-examination for him. If the only way he can testify
25 is testify on a single day, when I can't be here, perhaps I
01 can submit some questions for someone else to ask them for
02 me. If you are going to take more than one witness, I would
03 ask that we just concern ourselves less with Mr. Reid's
04 conflict and more about the participants.
05 CHAIRMAN CAFFREY: The 13th and 14th are an
06 impossibility for you?
07 MS. BELLOMO: Yes.
08 MR. ROOS-COLLINS: And for me.
09 CHAIRMAN CAFFREY: We are back to the 24th, 25th, and
10 26th. That represents a problem for your witness.
11 MR. DODGE: Presents a problem for our consultant,
12 Peter Vorster.
13 CHAIRMAN CAFFREY: He can't be here on the 24th, 25th,
14 and 26.
15 MR. VORSTER: I can be here the 24th and part of the
17 CHAIRMAN CAFFREY: We are going to have to go with the
18 24th, 25th, and 26th, and just do the best we can.
19 Hopefully, we can figure away to accommodate your witness,
20 Mr. Dodge, either through the video capacity, or if we have
21 to go beyond that point, I hate the thought of bringing
22 everybody back.
23 MR. DODGE: Dr. Reid is available on the 18th, February
25 CHAIRMAN CAFFREY: That could be a day if -- I didn't
01 hear anybody say the 18th was impossible. It is just that
02 it is a one-day situation.
03 MS. BELLOMO: I didn't mean to interrupt.
04 CHAIRMAN CAFFREY: That's all right. Go ahead, Ms.
06 MS. BELLOMO: I was just going to say that we are only
07 going to make one trip back. We can't come back for one day
08 and then come the next week for more days. So, if you are
09 going to take Mr. Reid on that one day, if you just do the
10 one witness, in the interest of letting this process go
11 forward, I will find someone, hopefully, that will ask
12 questions for me, maybe some participant here or I can give
13 some questions to the staff.
14 If you are going to take more than on witness on the
15 18th, and then reconvene the next week, we really are going
16 to disadvantaged by that.
17 CHAIRMAN CAFFREY: Everybody hang on for a moment.
18 Ms. Scoonover.
19 MS. SCOONOVER: Mr. Caffrey and Board Members, although
20 either Mike Valentine or I can be here on any of the days --
21 CHAIRMAN CAFFREY: You say you can be here?
22 MS. SCOONOVER: We will be here. I do have witnesses
23 who are college professors, so certain days of the week are
24 out of the question for them. So, I guess what I would
25 request is some flexibility within the new dates that are
01 scheduled that, perhaps, the order of witnesses might have
02 to be manipulated in order to accommodate Fritz Reid, in
03 order to accommodate Dr. Stine, and other witnesses. Some
05 CHAIRMAN CAFFREY: I will do everything I can.
06 Certainly goes without saying that we will do everything we
07 can to accommodate you all as long as it is within the realm
08 of reasonableness. As long as we get somebody around here
09 that is smart enough to keep track of it, because it may not
10 be me.
11 How does everybody feel about coming in -- the concern
12 I have, Ms. Bellomo, I want to accommodate you in every way
13 I possibly can. The concern I have about bringing everybody
14 back here for just a small part of one day to hear from one
15 witness and cross-examine, it is really a lot of
16 expense, and it concerns me.
17 That is fine if we only hear the one witness on a day
18 other than -- on a day before the 18th. What she is saying
19 is she can't -- did I hear -- now you've added that you
20 can't come back twice.
21 MS. BELLOMO: I can't come on the 18th and then turn
22 around and come the very next week.
23 CHAIRMAN CAFFREY: I would suggest, with great respect,
24 that you may have an ongoing problem because I can't
25 guarantee that we will be done, even if we go on 18th and
01 then go to the 24th, 25th, and 26, I cannot guarantee that
02 it will be finished because I don't know how many questions
03 people are going to have, what is going to crop up in
05 MR. FRINK: Mr. Chairman.
06 CHAIRMAN CAFFREY: Yes, Mr. Frink.
07 MR. FRINK: It appeared that the only clear problem we
08 had is going on the 18th or -- the only one we were going to
09 schedule the 18th, in the first place, is Dr. Reid.
10 CHAIRMAN CAFFREY: That's right.
11 MR. FRINK: If we could proceed with Dr. Reid and if
12 Ms. Bellomo could submit any questions she has, we would
13 attempt to get answers and follow up as best we can on
15 The next party, I believe, in line would be California
16 Trout, and as I understand it, the testimony that you are
17 going to present is limited to fisheries issue; is that
18 right, Mr. Roos-Collins?
19 MR. ROOS-COLLINS: That's right.
20 MR. FRINK: Would that present a problem, Ms. Bellomo,
21 in regards to California Trout?
22 MS. BELLOMO: No. We don't have any questions for
23 California Trout.
24 CHAIRMAN CAFFREY: So, there is a way to or for perhaps
25 at least the order is already arranged in such a way that we
01 can get -- if we schedule the 18th, and had Mr. Dodge's
02 witness in and you were to convey or somebody were to convey
03 the questions that Ms. Bellomo has, that --
04 MR. BELLOMO: We would like to pick the nicest member
05 of staff for that.
06 MR. BIRMINGHAM: I will volunteer.
07 MR. ROOS-COLLINS: Mr. Chairman, before we set in
08 concrete California Trout's appearance on the 18th, I need
09 to check with my three witnesses as to their availability.
10 CHAIRMAN CAFFREY: Please do so, sir.
11 MR. ROOS-COLLINS: Mr. Vorster.
12 MR. VORSTER: The 18th is fine with me.
13 MR. ROOS-COLLINS: Dr. Stine.
14 DR. STINE: The 18th I can't do. I am missing two days
15 of school now.
16 MR. DODGE: Dr. Stine will be back later.
17 CHAIRMAN CAFFREY: That will come under rule of
19 Mr. Frink, am I driving you crazy?
20 MR. FRINK: No, no. I think it is looking good. We
21 can go the 18th, 24th, 25th, 26th.
22 MR. DODGE: I can add, if you want to make me a panel,
23 I've got minutes of Dave Shuford on waterfowl monitoring. I
24 can try to get him here on the 18th, unless Ms. Bellomo
25 prefer I didn't.
01 MS. BELLOMO: Who would be the panel?
02 MR. DODGE: Dave Shuford on waterfowl monitoring.
03 CHAIRMAN CAFFREY: Let's do this, too. Let's lock in
04 on those four days. That would allow you, Mr. Dodge, to
05 have your witness in. And then, as time goes on here, if
06 there are other accommodations that people want to offer, as
07 some of you have graciously have, and we appreciate that,
08 please let Mr. Frink know. We will do everything we can to
09 accommodate everybody, and let you all know what is going
11 MR. DODGE: One of our primary witnesses is, of course,
12 Peter Vorster. As you try to wade through his testimony,
13 you know that. He is not available on the 25th or the
14 26th. So, I want to let the Board know that in advance.
15 CHAIRMAN CAFFREY: That is why we need to have people
16 here for his appearance.
17 UNIDENTIFIED VOICE: I might be able to get you on the
18 24th or the 18th.
19 CHAIRMAN CAFFREY: Again, that will come under
21 Mr. Frink, do you hear anything that is not
23 MR. FRINK: No. I think if we go with those days, one
24 or another we will be able to work it out.
25 MR. DODGE: Time permitting, we may do Mr. Vorster on
01 the 18th. He will be here, so why not.
02 CHAIRMAN CAFFREY: All right. That may require a
03 slightly revised schedule in writing, so we can all keep
04 track of it. I will ask Mr. Frink to make a determination,
05 if that makes sense. My list I am using up here may now
06 become stale very quick. I think that sorts that out.
07 I will just repeat for the record that we'll adjourn
08 sometime this afternoon, probably between the hours of four
09 and five, and then we will continue this hearing to February
10 18th, that is a Tuesday, and after that February 24th, 25th,
11 and 26th. That is Monday, Tuesday, and Wednesday.
12 BOARD MEMBER BROWN: 9:00 a.m.
13 CHAIRMAN CAFFREY: Always in this room at 9:00 a.m.
14 Thank you all very much.
15 Now, that takes us to cross-examination of U.S. Forest
16 Service, and good afternoon, Mr. Birmingham. Please begin.
17 MR. BIRMINGHAM: Thank you.
20 BY LOS ANGELES DEPARTMENT OF WATER AND POWER
21 BY MR. BIRMINGHAM
22 MR. BIRMINGHAM: Good afternoon, Mr. Porter. I am Tom
23 Birmingham, I am the attorney that represents the Department
24 of Water and Power of the City of Los Angeles in these
25 proceedings. I have just a few questions of you.
01 Paragraph 6 of your testimony states that:
02 Adequate channel maintenance flows for Rush,
03 Lee Vining, Walker and Parker Creeks are
04 critical to the management of federal lands.
05 As such, the Inyo National Forest supports
06 the peak channel flows as identified in the
07 stream scientists' stream report dated
08 October 4, 1995. (Reading.)
09 Is that correct? Did I accurately state your testimony?
10 MR. PORTER: Yes, you did.
11 MR. BIRMINGHAM: The Forest Service didn't conduct any
12 independent analysis to determine the flows necessary for
13 the proper management of the Forest Service lands, did it?
14 MR.PORTER: That's correct.
15 MR. BIRMINGHAM: Have you or has the Forest Service
16 consulted with any expert stream scientists concerning the
17 flows required for the proper management of federal lands
18 other than Drs. Ridenhour and Trush and Mr. Hunter?
19 MR. PORTER: Not that I am aware of.
20 MR. BIRMINGHAM: Essentially, you are just endorsing
21 the flows in the October 4, 1994 report?
22 MR. PORTER: That is correct.
23 MR. BIRMINGHAM: You understand that report was
24 prepared by Drs. Trush and Ridenhour and Mr. Hunter?
25 MR. PORTER: Yes, I do.
01 MR. BIRMINGHAM: If Drs. Trush and Ridenhour and Mr.
02 Hunter were of the view that the flows proposed by the
03 Department of Water and Power, given its monitoring plan,
04 were adequate to comply with the terms of D-1631, you would
05 change your view, wouldn't you?
06 MR. PORTER: At this point I know don't know if I
07 could answer that without talking to our specialists.
08 But I will say, up to this point, we have relied on the
09 consultants that were hired by DWP to make our assessment of
10 what the deep channel flows should be. We have not, up to
11 this point, relied on anyone else.
12 MR. BIRMINGHAM: Let's turn, if we can, to Mill Creek.
13 You said that rewatering of Mill Creek is a key step in the
14 provision of a healthy ecosystem in the North Basin.
15 MR. PORTER: That's correct.
16 MR. BIRMINGHAM: Then you talked about conducting a
17 comprehensive water analysis to address the entire basin; is
18 that correct?
19 MR. PORTER: The entire North Basin, which, to me, to
20 clarify, is to address the trade-offs between such things as
21 Wilson Creek versus Mill Creek, irrigation of Thompson
22 Meadow, irrigation of Conway Ranch, those kind of things.
23 MR. BIRMINGHAM: You indicated that before any final
24 decision could be made, that kind of comprehensive analysis
25 would have to be made?
01 MR. PORTER: We would want to -- well, what definitely
02 has to be made prior to the Forest Service changing or for
03 the Board to change its water right, is an environmental
05 MR. BIRMINGHAM: To what use has the Forest Service put
06 its water rights for the last five years?
07 MR. PORTER: Within the last five years, we have used
08 it on the ranch, DeChambeau Ranch. I think the last time we
09 did that, if memory serves me right, was 1992, '93.
10 MR. BIRMINGHAM: Now, you have indicated from the
11 Forest Service perspective, rewatering Mill Creek is a key
12 step in the provision of a healthy ecosystem. Has there
13 been anything that has prevented the Forest Service from
14 rededicating its water rights to Mill Creek?
15 MR. PORTER: Has there been anything that has prevented
17 MR. BIRMINGHAM: Has there been a legal impediment that
18 has prevented you from rededicating that water to Mill Creek?
19 MR. PORTER: Not that I am aware of.
20 MR. BIRMINGHAM: Has there been a physical impediment
21 that has prevented you from rededicating your water right to
22 Mill Creek?
23 MR. PORTER: Physically, I would say I think so. I
24 think at this point in point, without some other form of
25 return ditch, that we take our water out of Wilson Creek,
01 both of the ditches that serve the ranch are on Wilson
02 Creek. And once it is in Wilson Creek, I am unaware of any
03 physical means of transporting it back to Mill Creek.
04 MR. BIRMINGHAM: The study that you referred to, from
05 your perspective, would consider trade-off. Have you
06 expressed support for the waterfowl scientists' proposal to
07 carry out the DeChambeau/County Pond proposal; is that
09 MR. PORTER: Are you asking me if I have showed support
10 for County Ponds?
11 MR. BIRMINGHAM: Yes.
12 MR. PORTER: Think at this point one of the things we
13 have to keep in mind, I think you said it earlier on the
14 first day, is there are additional hoops to go through
15 besides just what is before the Board. One of those, in the
16 case of the County Ponds would be an environmental
17 analysis, and the same for, I believe, Black Point, which is
18 federal land.
19 In both those cases, an environmental analysis would
20 have to be done before a decision is made as to whether or
21 not to go forward with those projects.
22 MR. BIRMINGHAM: Isn't is it correct, Mr. Porter, then,
23 in fact, rewatering Mill Creek could reduce the spring flows
24 into the DeChambeau Pond?
25 MR. PORTER: Well, two things. One, maybe I should
01 explain it currently. DeChambeau Ponds are not watered by
02 springs; that is not the source of the water in DeChambeau
03 Ponds. It is a 942-foot deep, hot water artesian well that
04 is providing the water.
05 MR. BIRMINGHAM: Do you think that the irrigation of
06 land from Wilson Creek supports the water table that results
07 in 942-foot well?
08 MR. PORTER: Actually, I don't feel qualified to answer
09 that question. I think that if we were to drill additional
10 wells, it is a question that needs to be addressed that I do
11 not have an answer for.
12 MR. BIRMINGHAM: What was the original cost estimate
13 that the Forest Service prepared in order for the Forest
14 Service to carry out the DeChambeau Ponds Project on Forest
15 Service land?
16 MR. PORTER: Well, the Forest Service didn't really do
17 the project design. We reviewed it, but the project design
18 was done by Ducks Unlimited.
19 MR. BIRMINGHAM: That was Dr. Reid?
20 MR. PORTER: Dr. Reid and Robert Charlie, both of Ducks
22 MR. BIRMINGHAM: Do you recall what the original cost
23 estimate was to carry out that project?
24 MR. PORTER: Within a pretty close proximity.
25 MR. BIRMINGHAM: Within a close approximate, what was
02 MR. PORTER: It was around $350,000 from Caltrans, and,
03 then about, if I believe right and memory serves me correct,
04 about 80,000 from Ducks Unlimited. And then there was also
05 counted in the cost was contributed time by Forest Service
06 and others.
07 MR. BIRMINGHAM: If memory serves you correctly, it was
08 a little bit in excess of $430,000?
09 MR. PORTER: Yes.
10 MR. BIRMINGHAM: Earlier you made reference to a
11 $750,000 project. Was that the DeChambeau Project?
12 MR. PORTER: No. I think the cost estimate for doing
13 the County Ponds was around 750,000.
14 MR. BIRMINGHAM: Is the DeChambeau Project still in
16 MR. PORTER: Yeah. We are in the process right now of
17 trying to use bentonite to seal the ponds. We have about
18 five days worth of work left to complete that.
19 MR. BIRMINGHAM: In your testimony you stated that the
20 Inyo National Forest believes that DWP should bear the full
21 responsibility for financing, implementation, monitoring,
22 and operating and maintenance costs that are now needed as a
23 result of past diversion practices by DWP.
24 MR. PORTER: Yes, that is what I stated.
25 MR. BIRMINGHAM: Is it correct, Mr. Porter, that if an
01 activity will correct environmental damage caused by an
02 entity other than DWP, that it would be Inyo National
03 Forest's position that DWP shouldn't be expected to pay the
04 full cost of that activity?
05 MR. DODGE: Actually calls for speculation. I object.
06 Mr. Chairman, may I address you, sir?
07 CHAIRMAN CAFFREY: Yes, sir.
08 MR. DODGE: We have spent a fair amount of time with
09 people testifying as to who should pay for various projects.
10 I guess it occurs to me that that is a question of law
11 rather than a question of fact. If it is a question of law,
12 then we should brief the question of law and be done with it
13 rather than have a lot of people state their opinion as to
14 who should pay. I don't know how you feel about it.
15 CHAIRMAN CAFFREY: Mr. Brown has a thought or a
17 Mr. Brown.
18 BOARD MEMBER BROWN: If I understood redirect correctly
19 yesterday, the question was asked by Mr. Birmingham to the
20 panel, and I believe I heard the gentleman from the L.A.
21 Department of Water and Power state they are going to pay
22 for the projection regardless of whether the funding may or
23 may not come from. I see that as being a moot issue.
24 MR. DODGE: If that was the testimony, then I believe
25 it is a moot issue. I don't remember it that way.
01 MR. BIRMINGHAM: I am not sure that was the testimony,
02 Mr. Brown. I think that the witness may have testified that
03 the Department is willing to pay its share for certain
04 projects, but not necessarily the entire cost.
05 BOARD MEMBER BROWN: Mr. Frink, I believe that question
06 was specifically asked, and I'm quite sure, I am not
07 positive, but I am quite sure that the plan would proceed
08 regardless of whether the contribution of funding may or may
09 not come.
10 MR. FRINK: I think it is a policy question, and
11 unless agreement was reached it would be a legal question.
12 I think the representative who appeared on behalf of the
13 Board of the Department of Water and Power Commissioners
14 indicated that the City of Los Angeles and the Board of the
15 Department of Water and Power Commissioners are committed to
16 funding the cost of the actions proposed in their plan, and
17 if future things are eventually determined to be necessary
18 by this Board, that they would be committed to undertake
19 that, as well.
20 I don't believe that there has been any representations
21 made that the City of Los Angeles was prepared to pay for
22 things that really weren't in their plan and haven't been
23 ordered by the Board.
24 BOARD MEMBER BROWN: As I recall, that is exactly what
25 I meant.
01 MR. BIRMINGHAM: Mr. Frink is correct. I am sorry.
02 CHAIRMAN CAFFREY: In regard to Mr. Dodge's concern, I
03 don't know how much discussion, cross, recross there is
04 going to be about this subject. I am not inclined to limit
05 it at this point. I appreciate your offer for the
07 MR. BIRMINGHAM: May I comment on that?
08 I concur with --
09 CHAIRMAN CAFFREY: Don't confuse me.
10 MR. BIRMINGHAM: I am probably going to. I concur with
11 Mr. Dodge, that questions of what DWP can be compelled to
12 pay for, who should pay are questions of law. What I would
13 propose doing is striking all of the testimony that relates
14 to DWP's obligation to pay for things.
15 MR. DODGE: I was trying to solve the problem of going
16 forward, basically. I am not prepared to agree to strike
18 CHAIRMAN CAFFREY: He is only taking advantage of his
19 apparent opportunity.
20 Why don't you proceed as you were.
21 MR. PORTER: Please, can you repeat it? I think I have
22 forgotten it.
23 MR. BIRMINGHAM: Let me see if I can state the question
24 again. If an activity will correct environmental damage
25 caused by an entity other than DWP, it would be the position
01 of the Inyo National Forest that DWP shouldn't be expected
02 to pay the entire cost of that program?
03 MR. PORTER: Well, let me explain that this way: My
04 understanding, anyway, is that one of the things that we
05 agreed to was, more or less, what we identified as off-site
06 mitigation. That if DWP said it is either unreasonable to
07 do a particular thing with, say, at Rush Creek, that they
08 have the option of going elsewhere in the basin and
09 creating, say, waterfowl habitat in an area that they had
10 not diverted water from. And if, as part of that, DWP were
11 to say. "We can't do this at Rush Creek, but we can do this
12 at County Ponds," wherever, then I would expect that that
13 would be part of their plan and the same as other elements
14 in the plan, that DWP would pay for that.
15 And that is a little bit different than saying, "Should
16 Mono Basin be responsible for SCE's practices or ranch
17 owners' practices, et cetera.
18 MR. BIRMINGHAM: You would agree that DWP shouldn't be
19 responsible for SCE's practices?
20 MR. GIPSMAN: Objection. He just asked a question. He
21 got an answer, and maybe he didn't like the answer, but he
22 got an answer.
23 CHAIRMAN CAFFREY: Were you asking for a
25 MR. BIRMINGHAM: Yes, I was asking for clarification.
01 CHAIRMAN CAFFREY: I am not sure about that. I am
02 sorry, I probably didn't hear the answer that well, I am not
03 quite sure it was a total restatement of the question. Why
04 don't you try it one more time.
05 MR. BIRMINGHAM: You're not saying that DWP should be
06 responsible for SCE's practices, are you?
07 MR. PORTER: No, I am not saying that.
08 MR. BIRMINGHAM: Or a rancher's practices?
09 MR. PORTER: No.
10 MR. BIRMINGHAM: You would agree that neither the
11 Forest Service nor any other land management agency within
12 the Mono Basin should receive a windfall resulting from
13 DWP's activities to restore waterfowl habitat in the Mono
15 MR. PORTER: No, I am not suggesting that. I am
16 suggesting, though, that if it is suggested as a part of
17 your plan that you want to do something on Forest Service
18 land, then that should be treated as no different than any
19 other proposed project.
20 MR. BIRMINGHAM: I have no further questions.
21 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
22 Bureau of Land Management, any questions?
23 MR. RUSSI: No, thank you, Mr. Chairman.
24 CHAIRMAN CAFFREY: People for the Preservation of Mono
25 Basin. Ms. Bellomo.
03 BY THE PEOPLE FOR THE PRESERVATION OF MONO BASIN
04 BY MS. BELLOMO
05 MS. BELLOMO: Before we begin at length this afternoon,
06 I would like to ask you some questions about photographs
07 that are in our testimony. You don't have that up with you.
08 I want to give you a chance to get it.
09 MR. PORTER: It is in my truck in the garage. Maybe I
10 can borrow someone else's.
11 MS. BELLOMO: If I we take a moment, Mr. Chairman, my
12 husband does have a copy.
13 CHAIRMAN CAFFREY: These are all exhibits, Ms.
14 Bellomo, that are already been submitted for the record?
15 MS. BELLOMO: Yes.
16 MR. FRINK: They have been identified.
17 CHAIRMAN CAFFREY: They have been identified, not yet
18 been -- that is why I said for rather than to. I didn't say
19 accepted, I said submitted. But thank you for keeping me
20 honest, Mr. Frink. You are doing a valiant job.
21 MS. BELLOMO: Thank you.
22 CHAIRMAN CAFFREY: You're very welcome. Please
24 MS. BELLOMO: Good afternoon, neighbor.
25 MR. PORTER: Good afternoon, neighbor.
01 Can you tell me what part of Wilson Creek are on U.S.
02 Forest Service lands?
03 MR. PORTER: Most of the stretch below Hawthorne
04 Highway is on Forest Service.
05 MS. BELLOMO: Is the mouth of Wilson Creek on Forest
06 Service property?
07 MR. PORTER: I would have to look at a map. There is
08 some state land in there, but I am not exactly sure where.
09 MS. BELLOMO: Is it the position of the Forest Service
10 -- let me restate that.
11 Is it your understanding that the Forest Service
12 asserts ownership of relicted land below Forest Service
14 MR. PORTER: Yes.
15 MS. BELLOMO: What parts of Mill Creek are on U.S.
16 Forest Service land?
17 MR. PORTER: Again, I think it is about a three,
18 three-and-a-half-mile stretch, primarily below Highway 395.
19 MS. BELLOMO: Is the mouth of Mill Creek on Forest
20 Service land?
21 MR. PORTER: Again, I would have to look at a map to be
23 MS. BELLOMO: Do you have a map with you that would
24 help you make a determination?
25 MR. PORTER: Not with land ownership on it, no.
01 MR. BIRMINGHAM: Excuse me, DWP did submit --
02 CHAIRMAN CAFFREY: I was about to ask is there an
03 exhibit that is either offered initially for the record or
04 in the record that would assist us here, that would assist
05 Ms. Bellomo?
06 MS. BELLOMO: Thank you.
07 If you look at Exhibit DWP-65, does that assist you in
08 answering my questions regarding the ownership of the land
09 at the mouth of Mill and Wilson Creeks?
10 MR. PORTER: Actually, I think it will, but I need to
11 look at it for a second.
12 MS. BELLOMO: Thank you.
13 MR. PORTER: Based on that map, it would appear that
14 for both Mill Creek and Wilson Creek the mouth of the creeks
15 is owned by DWP.
16 MS. BELLOMO: Are you aware that the cadastral surveyor
17 from the Bureau of Land Management is planning to do a new
18 survey in the near future starting with that part of the
20 MR. PORTER: No.
21 MS. BELLOMO: Would that be relevant to you -- would
22 you find that relevant to see the results of a new cadastral
23 survey before you conclusively decided that the Forest
24 Service has an ownership interest in the mouth of those
01 MR. PORTER: In the case of Wilson Creek, at least
02 drawn on this map, it is very close. So, yeah, I think any
03 one would be interested in the actual private land
05 MS. BELLOMO: If I understand your testimony, you are
06 not sure, as you sit here today, whether the Forest Service
07 has jurisdiction over the mouth of Wilson Creek or not?
08 MR. PORTER: That is not what I am trying to say.
09 What I am trying to say is, based on this map, it would
10 appear that it is DWP. But this map appears to be a
11 reproduction. Without looking at a map back home to verify
12 it, this could be drawn wrong. But according to this map,
13 it is DWP.
14 MS. BELLOMO: Assuming that I am correct, that the
15 cadastral surveyors from BLM are going to be doing new
16 surveys, would you want to wait until you saw the results of
17 their survey before you relied about the map that you have
18 at home?
19 MR. GIPSMAN: Objection. I think the question has been
20 asked and answered. I don't think we can really state
21 anything more than what is already been said here in
22 response to this question.
23 MS. BELLOMO: I am trying to clarify whether Mr. Porter
24 thinks that it is important for the Board to withhold or
25 whether the Forest Service thinks it is important to
01 withhold judgment on who has jurisdiction over the mouth of
02 Wilson and Mill Creek until the cadastral survey is done.
03 CHAIRMAN CAFFREY: I am not sure I got that out of the
05 MR. GIPSMAN: I am going to object as to relevance. We
06 would go by our existing land status maps. If a survey
07 showed that those are incorrect, then we would maybe have a
08 different position. But at present, we can't take any
09 position other than what is in our land status maps at the
11 CHAIRMAN CAFFREY: I will sustain that objection.
12 MS. BELLOMO: Are you familiar with cadastral surveyor,
13 what that term refers to?
14 MR. PORTER: Somewhat yes.
15 MS. BELLOMO: Would you share my understanding that
16 they are the surveyors, the only surveyors, that are
17 authorized to do official surveys for the United States
18 Government of federal land?
19 MR. PORTER: I believe that is correct. They are our
20 only licensed surveyors.
21 MS. BELLOMO: You state in your testimony that the Inyo
22 National Forest and Mono Basin National Forest Scenic Area
23 support restoration of Mill Creek.
24 Do you recall that testimony?
25 MR. PORTER: Yes, I do.
01 MS. BELLOMO: Who makes that decision in the Inyo
02 National Forest Scenic Area?
03 MR. PORTER: I think in the case of the Scenic Area
04 plan, where the direction is found, that was signed by the
05 Forest Supervisor.
06 MS. BELLOMO: That is Mr. Martin?
07 MR. PORTER: That is correct.
08 MS. BELLOMO: With regards to the Inyo National Forest
09 who made the decision to support the restoration of Mill
11 MR. PORTER: I am sure if that is recommended by the
12 Forest Supervisor and, I believe, signed by the regional
13 forester for Land Management Plans, but I could be wrong on
14 that in terms of authority level.
15 MS. BELLOMO: You state in your statement in your
16 testimony, that Mill Creek restoration is a key step in
17 achieving a healthy Mono Basin ecosystem.
18 Do you recall that testimony?
19 MR. PORTER: Yes, I do.
20 MS. BELLOMO: What experts did you rely upon in
21 arriving at that conclusion?
22 MR. PORTER: That conclusion was arrived at when the
23 Comprehensive Management Plan for the Scenic Area was
24 prepared in about 1984, and shortly before that.
25 MS. BELLOMO: Were you part of that decision?
01 MR. PORTER: No, not at that time.
02 MS. BELLOMO: Can you tell me what the opinion or what
03 the conclusions of the Forest Service was based upon in
04 terms of any scientific analysis or investigation?
05 MR. PORTER: Actually, no, I can't tell you what that
06 was based on. I do know that, in part, it was based upon
07 the National Academy of Sciences report, among other
08 documents. MS. BELLOMO: Specifically, what did that
09 report deal with?
10 MR. PORTER: It was -- that goes back before my time as
11 Scenic Area Manager, and actually before I had much
12 involvement with Scenic Area. But they were -- it was in
13 the legislation that created the Scenic Area, that the
14 National Academy of Sciences would do a study of Mono Lake
15 and Mono Basin.
16 MS. BELLOMO: Can you refer us to the document that you
17 relied upon in making the statement that Mill Creek
18 restoration is a key step in achieving a healthy Mono Basin
20 MR. PORTER: That is not on document; that is opinion.
21 MS. BELLOMO: Whose opinion is that?
22 MR. PORTER: In that particular case, mine, among
24 MS. BELLOMO: So, it is your opinion that Mill Creek
25 restoration is a key step in achieving a healthy ecosystem?
01 MR. PORTER: That's correct.
02 MS. BELLOMO: What do you base that opinion on?
03 MR. PORTER: I base that opinion on having participated
04 in the FERC relicensing of Lundy Power Plant. And in that
05 process, comments, observations made by Fish and Game,
06 Forest Service specialists.
07 MS. BELLOMO: What was the recommendation of those
08 specialists with regard to the amount of water that should
09 be put back in Mill Creek?
10 MR. PORTER: Which? It depends on who are talking
11 about. Are you talking about Forest Service or Fish and
13 MS. BELLOMO: Well, let's start with Forest Service.
14 MR. PORTER: Forest Service recommended 7 cfs as a
15 minimum flow.
16 MS. BELLOMO: So, for Forest Service are you saying
17 that 7 cfs minimum flow was sufficient to restore Mill Creek
18 to satisfy the key step in achieving a healthy Mono Basin
20 MR. PORTER: No, I am not saying that. The 7 cfs,
21 which is the number derived at for purposes of the FERC
22 relicensing, is primarily in response to maintaining
23 fishery and it doesn't necessarily reflect people's attitude
24 in terms of other environmental components of the creek.
25 MS. BELLOMO: So, specifically, what do the Forest
01 Service scientists find that you are relying upon to say
02 that restoration is a key step in achieving something in
03 excess of 7 cfs is necessary?
04 MR. PORTER: I'm sorry, I don't think I understand your
06 MS. BELLOMO: Do you believe that 7 cfs down Mill Creek
07 as a dedicated flow would be sufficient to satisfy your
08 opinion that restoration of Mill Creek is necessary for a
09 healthy Mono Basin ecosystem?
10 MR. PORTER: I don't think I am qualified to answer
12 MS. BELLOMO: Do you have any opinion as to -- or let
13 me take that back. Does Forest Service have any opinion as
14 to the amount of flow that should be restored to Mill Creek?
15 MR. PORTER: Not at this time. We are waiting to see,
16 as I stated before, an analysis of it.
17 MS. BELLOMO: Has the Forest Service done any
18 independent study regarding Mill Creek?
19 MR. PORTER: No, we have not. We are planning to try
20 to do some next spring. We will attempt to put in some
21 transets and use the same methodology that Terry Russi of
22 BLM has used on Wilson Creek.
23 MS. BELLOMO: Has the Forest Service at this time done
24 any study of Wilson Creek?
25 MR. PORTER: No, we have not.
01 MS. BELLOMO: You refer in your testimony to -- you
02 state that the Inyo National Forest and the Mono Basin
03 National Forest Scenic Area Comprehensive Management Plan
04 supports restoration of Mill Creek to restore critical
05 riparian and wetland habitat.
06 MR. PORTER: Correct.
07 MS. BELLOMO: Can you, please, describe the riparian
08 and wetlands habitat that expect to be restored in Mill
10 MR. PORTER: No. Again, I don't think I am personally
11 qualified to answer that question.
12 MS. BELLOMO: What document were you relying on in
13 making that statement?
14 MR. PORTER: That statement is a product of
15 conversations with our forest hydrologist.
16 MS. BELLOMO: So, it is your forest hydrologist's
17 opinion that you relied upon in concluding that critical
18 riparian and wetlands habitat would be restored?
19 MR. PORTER: Correct.
20 MS. BELLOMO: Who is the forest hydrologist?
21 MR. PORTER: Lucy McKey [phon].
22 MS. BELLOMO: Did she indicate how long it would take
23 to restore this critical riparian and wetlands habitat?
24 MR. PORTER: No, she did not.
25 MS. BELLOMO: You didn't pursue that with her?
01 MR. PORTER: No, I didn't.
02 MS. BELLOMO: In the Forest Service's opinion, would
03 drying up Wilson Creek be an acceptable environmental trade
04 for the rewatering of Mill Creek?
05 MR. PORTER: Again, at the risk of repeating myself,
06 what we want to see is an analysis done that addresses the
07 values, the relative values of Wilson Creek and the relative
08 values of Mill Creek as a first step in making those kinds
09 of decisions.
10 MS. BELLOMO: I guess I am having difficulty
11 understanding how you can support the restoration of Mill
12 Creek if you don't have any of this information that you say
13 needs to be obtained.
14 Are you supporting the restoration of Mill Creek, the
15 Forest Service?
16 MR. PORTER: Do we support it? Yes, we support the
17 restoration of Mill Creek, along with Lee Vining and Rush
18 Creeks. They were lumped together in terms of how they are
19 addressed in the Scenic Area Plan.
20 MS. BELLOMO: Does the Forest Service also support the
21 maintenance of Wilson Creek?
22 MR. PORTER: Yes. That is also in the plan.
23 MS. BELLOMO: Can you give me a reference to where that
24 is located?
25 MR. PORTER: I think I can find it for you.
01 MS. BELLOMO: Could you tell me how much time I have
03 CHAIRMAN CAFFREY: You used about 43 and a half
05 MR. PORTER: Could I possibly look that up at break and
06 then either come back to it or show it to you?
07 MS. BELLOMO: Would that acceptable, Mr. Chairman?
08 CHAIRMAN CAFFREY: I don't know if anybody was
09 listening to that.
10 Mr. Frink, is that appropriate?
11 MR. FRINK: That would be appropriate. He could give
12 the reference.
13 CHAIRMAN CAFFREY: We are just talking about a
14 reference, is that all we are talking about?
15 MS. BELLOMO: Yes.
16 CHAIRMAN CAFFREY: Sure, I am sorry.
17 MS. BELLOMO: We could have a reference in the record
18 where the Scenic Area Plan supports that.
19 MR. PORTER: Thank you.
20 CHAIRMAN CAFFREY: Sure, we will allow that.
21 Mr. Dodge.
22 MR. DODGE: Mr. Chairman, I believe that the Dr.
23 Ridenhour is leaving right now. I believe he had staff's
24 permission to do that.
25 MR. JOHNS: Like he needs it.
01 MR. DODGE: Mr. Roos-Collins and I actually turn out to
02 control February 18th. We have agreed that we would let Dr.
03 Ridenhour call himself as a witness on February 18th. I
04 wanted everyone to know that was going on happen.
05 CHAIRMAN CAFFREY: So, it --
06 MR. DODGE: It will be Dr. Reid, because we need to,
07 and Dr. Ridenhour --
08 CHAIRMAN CAFFREY: Dr. Ridenhour, in other words, is
09 not going to be here today if we get to him for direct, and
10 we will do on the 18th or did I --
11 DR. RIDENHOUR: I don't see any possibility the way it
12 is going.
13 CHAIRMAN CAFFREY: I would say that is fair assumption.
14 DR. RIDENHOUR: I have a six-hour drive and I think I
15 will save going.
16 CHAIRMAN CAFFREY: Yes. Without objection, we will
17 accommodate you in the spirit of what we talked about at the
18 beginning of this afternoon session, sir.
19 MR. DODGE: We will start with Dr. Reid, perhaps in
20 tandem with Mr. Schufford on waterfowl. Then we will go to
21 Dr. Ridenhour representing himself, and then whatever Cal
22 Trout witnesses we can get in.
23 CHAIRMAN CAFFREY: On the 18th you are talking about?
24 MR. DODGE: Yes, sir.
25 CHAIRMAN CAFFREY: Yes, sir, that is fine.
01 We do not charge you for that time, Ms. Bellomo. We
02 will start the clock now. Just a moment, we won't start it
04 Mr. Roos-Collins.
05 MR. ROOS-COLLINS: At the risk of saying the obvious,
06 does this mean then, that Cal Trout will not call its panel
07 today? I have a witness waiting two hours away to come if
08 there is any possibility he may be called.
09 CHAIRMAN CAFFREY: Well, we can just -- I can't imagine
10 we'd get you in. If we get down to you, we could have taken
11 you, we won't. Does that work?
12 MR. ROOS-COLLINS: Thank you, Mr. Chairman.
13 CHAIRMAN CAFFREY: Mr. Frink, you're understanding all
14 of that?
15 MR. FRINK: Yes.
16 CHAIRMAN CAFFREY: I think I do, and that is what is
17 scaring me. All right.
18 Now we will start the clock again.
19 MS. BELLOMO: Thank you.
20 CHAIRMAN CAFFREY: Please proceed.
21 MS. BELLOMO: Mr. Porter, looking at your testimony
22 attachment, I guess it is one of the attachments that is
23 called Enclosure 1, and it is the informal comments to the
24 draft waterfowl plan. I want to direct your attention to
01 Can you clarify for me what these were comments to?
02 What these comments were submitted on or were they submitted
03 to anyone?
04 MR. PORTER: Enclosure 1?
05 MS. BELLOMO: Yes.
06 MR. PORTER: They were submitted as comments to DWP
07 with a copy to the Board when the restoration and stream
08 plans were in draft stage.
09 MS. BELLOMO: You say at comment four, that Mill Creek,
10 referring to Mill Creek, should be stated that without the
11 effective rewatering of Mill Creek, during the entire year,
12 the waterfowl objectives of the plan cannot be met.
13 Just so I understand that comment, is the Forest
14 Service saying that it supports year-round rewatering of
15 Mill Creek as a priority or is that somebody's observation?
16 MR. PORTER: I'm turning to it now so I can reread it.
17 What number are you looking at?
18 MS. BELLOMO: Comment number four.
19 MR. PORTER: Specifically, would you reask the
21 MS. BELLOMO: My question is: Does the Forest Service
22 support year-round rewatering as a priority or was that
23 simply a factual observation?
24 MR. PORTER: I think what we were trying to point out
25 was clarification to DWP that the time of year in which
01 water was needed for waterfowl was fall. Early winter.
02 MS. BELLOMO: That wasn't a statement of position by
03 the Forest Service, that this fact did occur?
04 MR. PORTER: That was clarification to DWP that it was
05 unclear in their plan.
06 MS. BELLOMO: Does the Forest Service have an opinion
07 as to whether it would be possible to rewater Mill Creek
08 during the entire year and also maintain Wilson Creek
09 flowing down to the lake year-round?
10 MR. PORTER: At this point in time, we don't have an
11 opinion. Again, that is why we want an analysis done.
12 MS. BELLOMO: Again, on Enclosure 1, in your first
13 comment, you reference Page 11, Page 8. If you could read
14 that comment for a moment, I am going to ask you a
16 MR. PORTER: Yes, go ahead.
17 MS. BELLOMO: You stated that existing cottonwood trees
18 along Cemetery Road at the county park are largely dependent
19 on irrigation water from Thompson Meadow. Are those trees
20 that are directly below Thompson Meadow that you are
21 referring to?
22 MR. PORTER: The trees I was referring to there are
23 the trees that are along Cemetery Road and the trees that
24 are -- cottonwood trees that are both slightly below the
25 Cemetery Road to the south and then also the scattered trees
01 that are in the meadow to the north of Cemetery Road.
02 MS. BELLOMO: Where do these trees stand in
03 relationship to Thompson Meadow?
04 MR. PORTER: Some of them stand right by the entrance
05 to the county park, down to the entrance to Jeff Hanson's
07 MS. BELLOMO: I would like to ask you to turn to
08 photographs that we have as exhibits of our testimony. I
09 will provide them to you because I know you don't have your
10 set with you.
11 MR. DODGE: If I may ask counsel, where are these
12 photos in my stack?
13 MS. BELLOMO: I am finding those. They are in the
14 envelope. They should be in the envelope, and I am finding
15 the right number.
16 Directing your attention, Mr. Porter, to Exhibit
17 RPMBM-6. For clarification, could I ask you for the benefit
18 of people that are in the hearing room, could I ask you to
19 point on the map behind you, which, I think, is R-DWP-65, I
20 believe, LADWP-65, the map behind you on the board, just
21 point out where Thompson Meadow is, and where this Cemetery
22 Road is that you are referring to.
23 MR. PORTER: Right in here.
24 MS. BELLOMO: The line that you are showing is Cemetery
01 MR. PORTER: Yes, Cemetery Road is right there.
02 MS. BELLOMO: Where is Thompson Meadow area?
03 MR. PORTER: It is right across from the County Park,
04 along on this map where County Park is shown.
05 MS. BELLOMO: It is on the, not very good with
06 directions, generally north side of the road, would you say?
07 MR. PORTER: I think the bulk of the meadow is on the
08 north side, yeah.
09 MS. BELLOMO: Asking you to look at the photographs in
10 R-PMBP-6, I am just asking you to look at the first page of
11 photographs. There are two pages here.
12 I will represent to you these were taken on January
13 3rd, '97, which is indicated on the exhibit. Not trying to
14 represent that these are all dead as they hit the ground.
15 There was no foliage at the time.
16 Would you agree that now in January that the trees
17 would approximately look this way in terms of foliage? You
18 would expect to see them greener?
19 MR. DODGE: Objection. Is she calling for a question
20 about a healthy tree?
21 MS. BELLOMO: Do they look they way now?
22 CHAIRMAN CAFFREY: I didn't hear the objection, I'm
24 MR. DODGE: I couldn't understand the question. It was
25 ambiguous to me.
01 CHAIRMAN CAFFREY: Thank you.
02 MR. PORTER: Can you restate your question?
03 MS. BELLOMO: I have not introduced these into
04 evidence. I don't want to mislead anyone in to thinking
05 that we are representing that these are dead trees, all of
06 these are dead trees, simply because there is no foliage on
07 them. So, I am asking you: Have you been down to the
08 County Park lately and seen this is more or less the way
09 that they look because it is January?
10 MR. PORTER: I would say so, yeah. Although, there are
11 some that are dead.
12 MS. BELLOMO: Looking at the top photograph on the
13 first page of Exhibit R-PMBP-6, do you recognize the
14 location of that line of trees as being at the east end of
15 Thompson Meadow, parallel to -- running parallel to the
16 Cemetery Road?
17 MR. PORTER: That I couldn't say for certain, that that
18 is exactly where it is, but that is what it looks like to
19 me, yes.
20 MS. BELLOMO: The bottom photograph unfortunately isn't
21 an excellent photograph, but I am hoping, since you know the
22 area so well, you will be able to recognize it.
23 Do you recognize that this photograph is looking down
24 towards the lake?
25 MR. PORTER: Let me look at that one for a second.
01 MS. BELLOMO: Directing your attention -- first of all,
02 directing your attention to the mountains behind and --
03 MR. PORTER: I think it is looking slightly southwest,
04 back towards 395, down towards the property below where Mono
05 ends is what it appears to me.
06 MS. BELLOMO: You see in the middle of the photograph a
07 line where you have sagebrush in the foreground, then you
08 see a line where there is a line of vegetation, sort of rust
10 MR. PORTER: I think I see what you are talking about.
11 MS. BELLOMO: What I am trying to establish is that the
12 road along which you are saying the trees are found, that
13 are largely dependent on water from Thompson Meadow
15 MR. PORTER: I believe so if that is Cemetery Road,
16 that I am looking at.
17 MS. BELLOMO: Would you have any reason to think that
18 that is not?
19 MR. PORTER: No. To be honest, I really can't see the
20 road very clearly in that photo.
21 MS. BELLOMO: I will be interested if you can suggest
22 any other road or location that could be.
23 MR. PORTER: No, I don't think I could.
24 MS. BELLOMO: How recently have you been down along
25 Cemetery Road in that area, along County Park?
01 MR. PORTER: Probably, within the month.
02 MS. BELLOMO. You have noticed, I assume, there is an
03 area which is depicted in the left portion of this
04 photograph where the county had to remove a number of trees
05 along the County Road because they were dead?
06 MR. PORTER: Yes, I did notice that.
07 MS. BELLOMO: You noticed, I assume, that closer to
08 the County Park the trees weren't all dead at this time and
09 had not been removed yet, correct?
10 MR. PORTER: Yeah. I would say that is correct.
11 MS. BELLOMO: Is it correct, the County Park and
12 Thompson Meadow are within the boundaries of National Scenic
14 MR. PORTER: That is correct.
15 MS. BELLOMO: And am I correct, also, that DWP, Los
16 Angeles Department of Water and Power, is exempted in some
17 way from the full range of regulations on their property
18 within the Scenic Area?
19 MR. PORTER: What DWP is -- we have what are called
20 private land guidelines that were developed for private
21 property within the Scenic Area. DWP, along with other
22 state and federal agencies, are exempt from those
23 guidelines, correct.
24 MS. BELLOMO: If a private property owner who owns
25 property in the Scenic Area proposed, for instance, to cut
01 down a orchard on their property, would they have to get
02 Scenic Area permission for that?
03 MR. PORTER: Restate that, please.
04 MS. BELLOMO: Let's say, hypothetically, a private
05 property owner, who had an old orchard of trees on their
06 property, if they wanted to cut that down and they are in
07 the Scenic Area, would they have to get a permit to do that?
08 MR. PORTER: Not a permit, no permit.
09 MS. BELLOMO: Some sort of permission?
10 MR. PORTER: We have never had that kind of issue come
11 up such as cutting down a orchard. Generally, what we deal
12 with is somebody wanting to make a structural improvement on
13 the property. As far as something such as you suggest,
14 cutting down the trees, I really don't know the answer to
15 that. I would have to get an opinion from the Office of
16 General Counsel.
17 MS. BELLOMO: You reference that most of the activities
18 related to land use regulation on private lands have to do
19 with construction, I think you said. Is that correct,
20 something along those lines.
21 MR. PORTER: Yes, construction or expansion.
22 MS. BELLOMO: Is the concern there that the Scenic Area
23 has -- is the concern there with protecting the view shed in
24 the Scenic Area?
25 MR. PORTER: That is certainly part of it, yes.
01 MS. BELLOMO: Am I correct in assuming that the Forest
02 Service mentions that the cottonwood trees along Cemetery
03 Road at the County Park are largely dependent on irrigation
04 water from Thompson because of the concern of the view shed
05 in Scenic Area if those trees were to die if they weren't
07 MR. PORTER: No, that is not exactly right. The reason
08 that comment is in there, again, these were comments as
09 draft plan, and it was simply a way of telling DWP that the
10 trees associated with the Cemetery Road are -- could be, in
11 part, dependent on the water that it is used to irrigate
12 Thompson Meadow and that dewatering it may not be a popular
13 decision. That is all.
14 MS. BELLOMO: Do you recall the meeting that we had
15 with Dennis Martin, I believe that is his name, and did you
16 say he is the Forest Supervisor?
17 MR. PORTER: Yes.
18 MS. BELLOMO: Do you recall the meeting we had with
19 Dennis Martin at the Knowles' [phon] house where you and I
20 were present and several other community members?
21 MR. PORTER: Yes, I do.
22 MS. BELLOMO: Was I correct in understanding Mr. Martin
23 saying that the Scenic Area does have jurisdiction or
24 authority to comment on activities of land uses DWP engages
25 in on their land, to the extent it impacts adjacent
01 property, including view shed in the Scenic Area?
02 MR. PORTER: I think that is basically correct. As I
03 recall, what Dennis said was that whether it be any
04 landowner. And as an example, take the original proposal
05 for Conway Ranch; we have the ability to comment on that
06 kind of project through the county planning process, the
07 same as any other entity or citizen does. I believe that
08 was his point MR. BIRMINGHAM: Excuse me, Mr. Caffrey.
09 I wonder if I could ask for explanation of the relevance of
10 the Scenic Area Plan to the adequacy of DWP's proposed
11 Waterfowl Habitat Restoration Plan.
12 CHAIRMAN CAFFREY: Could you explain this line of
13 questioning, Ms. Bellomo?
14 MS. BELLOMO: Yes, Mr. Caffrey.
15 The Department of Water and Power's proposal is to stop
16 irrigating Thompson Meadow, which we have reason to believe
17 is going to cause the vegetation area, including all the
18 trees, to ultimately die. And I am trying to determine what
19 the intent of the Forest Service comments are in their
20 position. They observe that the trees are dependent on
21 irrigation from Thompson Meadow. Now I am inquiring as to
22 whether the Scenic Area actually has jurisdiction to, for
23 instance, prevent the Department of Water and Power from
24 stopping irrigation because it is going to destroy the view
25 sheds in the Scenic Area.
01 MR. PORTER: Maybe I can answer that.
02 CHAIRMAN CAFFREY: Go ahead with the question.
03 MR. PORTER: No, we don't have the authority to stop
04 them. We also don't have the authority to stop, say, Conway
05 Ranch. We can comment, but we do not have final
07 MS. BELLOMO: Your comment would be made in accordance
08 with Scenic Area Plan guidelines; is that what would govern
09 your comments?
10 MR. PORTER: Correct.
11 MS. BELLOMO: Has the Scenic Area decided yet whether
12 to oppose, ultimately oppose DWP's proposal to stop
13 irrigating Thompson Meadow, to oppose that plan on the basis
14 it would damage the view shed in the Scenic Area?
15 MR. PORTER: No. That has not been assessed by anyone,
16 to my knowledge. And I am assuming that as a consequence of
17 returning water to Mill Creek that that is part -- will be
18 part of the CEQA analysis when that application comes before
19 the Board.
20 MS. BELLOMO: Before the Water Board?
21 MR. PORTER: Yes.
22 MS. BELLOMO: Now, turning to the subject of DeChambeau
23 Ranch, which you testified earlier today is located on the
24 Forest Service property.
25 MR. PORTER: Correct.
01 MS. BELLOMO: This is now managed by the Forest Service
02 as well as owned by them, correct?
03 MR. PORTER: Yes.
04 MS. BELLOMO: When was that property acquired by the
05 Forest Service?
06 MR. PORTER: I think in about 1988, sticks in my mind.
07 MS. BELLOMO: At the time Forest Service acquired
08 DeChambeau Ranch properties, was water still flowing in
09 both of the DeChambeau ditches from Wilson Creek onto the
10 ranch property?
11 MR. PORTER: I think I can stay that prior to Forest
12 Service acquiring the land, it was in ownership by Mammoth
13 Mountain for a period of about 18 months, in which for the
14 first season it was not irrigated. The season after that,
15 it was irrigated.
16 MS. BELLOMO: By the Forest Service?
17 MR. PORTER: It was -- we, the Forest Service, did the
18 irrigation, but it was still owned, at that point in time,
19 by Mammoth Mountain. The land exchange was not final.
20 MS. BELLOMO: The irrigation water was coming out of
21 Wilson Creek, correct?
22 MR. PORTER: Correct.
23 MS. BELLOMO. The Forest Service has a Mill Creek water
24 right, correct?
25 MR. PORTER: Correct.
01 MS. BELLOMO: You would get that water out of Wilson
03 MR. PORTER: Correct.
04 MS. BELLOMO: You would get it to the ranch via the two
05 DeChambeau ditches?
06 MR. PORTER: There are two ditches that have been
07 historically used, yes.
08 MS. BELLOMO: At the time that Forest Service first
09 took over management of DeChambeau Ranch and was irrigating
10 with Wilson Creek water, some of that water that was being
11 used for irrigation was also being put into DeChambeau
12 Ponds; is that correct?
13 MR. PORTER: I believe that is correct, yes.
14 MS. BELLOMO: Would you agree that some of it that was
15 spread on the meadow right above the pond for irrigation
16 purposes then went into the ponds?
17 MR. PORTER: Yes. Some of it, even if only a
18 subsurface flow, would get to the pond.
19 MS. BELLOMO: Would you also agree that overflow water
20 to the DeChambeau Ponds at that time used to flow down,
21 whether it was overflow water, that used to flow down to the
22 County Ponds that lie between the DeChambeau Ponds and Mono
24 MR. PORTER: Could you repeat that question, please?
25 MS. BELLOMO: I am asking whether you would agree that
01 overflow water from DeChambeau Ponds made its way down to
02 the County Ponds?
03 MR. PORTER: Yes. You could do it that way or, I
04 believe, there is a ditch in which you could bypass
05 DeChambeau Pond and take it straight to County Pond.
06 MS. BELLOMO: That was done also with water from Wilson
07 Creek that was Forest Service or DeChambeau property water
08 rights, correct?
09 MR. PORTER: That is correct.
10 MS. BELLOMO: At some point in time, the Forest Service
11 stopped using Wilson Creek water onto DeChambeau property
12 altogether, correct?
13 MR. PORTER: We haven't used water on DeChambeau Ranch
14 from Wilson Creek, I believe, since '92, '92 or '93. I
15 can't really remember what year it was.
16 MS. BELLOMO: That included not putting any water in
17 the DeChambeau Ponds from Wilson Creek or in the County
18 Ponds, correct?
19 MR. PORTER: Well, not any water. There still is the
20 hot water?
21 MS. BELLOMO: I meant Wilson Creek water.
22 MR. PORTER: Wilson Creek water, that is correct.
23 MS. BELLOMO: Am I correct that the Forest Service
24 stopped -- at the point of time when water stopped being
25 transported onto DeChambeau property from the DeChambeau
01 ditches, that point in time, that water was not being used
02 because the irrigation ditches had, excuse the local
03 expression, blown out and they would not carry water?
04 MR. PORTER: I wouldn't exactly characterize it as the
05 ditches had blown out. I think it is more a matter of the
06 ditches were in very bad shape. The only ditch that we
07 could even consider using was the lower ditch at the County
08 Road. The condition of that ditch was such that, to put
09 water in it, wasted a lot of water, but it did carry water.
10 MS. BELLOMO: Are you saying, under those
11 circumstances, the Forest Service decided just not to use
12 any of their Wilson Creek water rights and put it in the
14 MR. PORTER: Yes, we decided not to do that.
15 MS. BELLOMO: What were you using as an alternative for
16 irrigation at that point?
17 MR. PORTER: Just the hot water. That was just the
19 MS. BELLOMO: You weren't irrigating the meadows at
20 that point?
21 MR. PORTER: No.
22 MS. BELLOMO: You stopped irrigating the trees around
23 the ranch house and buildings?
24 MR. PORTER: Correct.
25 MS. BELLOMO: At that point, the Forest Service stopped
01 using Wilson Creek water on DeChambeau property even at the
02 time of the year when there was enough flow to exercise your
03 water right, correct?
04 MR. PORTER: That's correct.
05 MS. BELLOMO: The sole reason for that was -- are you
06 saying the only reason for that was because the ditch was,
07 although to hold water, was not in very good condition?
08 MR. PORTER: That was the main reason. I think the
09 other part of our reason was that strong opposition had been
10 expressed, when we did the DeChambeau Pond EA, to us using
11 Mill Creek for purposes of maintaining those ponds.
12 MS. BELLOMO: Whose strong opposition are you referring
14 MR. PORTER: At the time, one was, I believe, Emilie
15 Strauss, although she didn't want it back necessarily at
16 that time, anyway. She didn't necessarily want it back in
17 Mill Creek. She wanted it left in Wilson Creek.
18 MS. BELLOMO: Do you know if, at that time, Emilie
19 Strauss was employed by the Mono Lake Committee?
20 MR. PORTER: No. She was not at that point in time.
21 She was working for Caltrans at that point in time.
22 MS. BELLOMO: Was that after she worked for the Mono
23 Lake Committee?
24 MR. PORTER: Yes, it was after.
25 MS. BELLOMO: She is a biologist, is that correct?
01 MR. PORTER: I don't think she is a biologist.
02 Somebody may know more than me, but as I recall, I think she
03 was an ornithologist. I think her specialty, anyway, is
05 MS. BELLOMO: Were you ever told by anyone that the
06 Forest Service might be sued if it used its Mill Creek water
07 right at a time when, in fact, you didn't have a right to
08 use it?
09 MR. PORTER: I don't know if "sued" was the word
10 used. Threatened, yes.
11 MS. BELLOMO: Who threatened?
12 MR. PORTER: Basically, one was Scott Stine. Scott
13 understood what the legal ramifications of our water right
14 was, and said, "Use it appropriately."
15 MS. BELLOMO: "Or else you are in trouble," was that
16 the implication?
17 MR. PORTER: I wouldn't say the implication was, or
18 else, by any means. Scott was making a point.
19 MS. BELLOMO: Did that factor into the Forest Service's
20 decision to stop using its Mill Creek water right?
21 MR. PORTER: We certainly heeded had some of his
22 advice, yes.
23 MS. BELLOMO: Am I am correct that you don't have a
24 gauging station to determine if you are using exactly the
25 right amount?
01 MR. PORTER: That is correct.
02 MS. BELLOMO: So, did that contribute to your concern
03 that you might be caught using, when you weren't supposed to
04 be using?
05 MR. PORTER: I wouldn't say it contributed to our
06 concern. The bottom line was if our water right really says
07 that we take 12.6 cfs after 40 cfs come through the
08 tailrace, and we have no way of measuring of whether we are
09 taking 12.6 cfs, then we cannot guarantee that we are living
10 by the letter of the law.
11 And certainly, that had an affect on our decision to
12 hold off on our using that water.
13 MS. BELLOMO: Assume hypothetically that the Forest
14 Service was given an opportunity, a legal opportunity, to
15 acquire a right to year-round flows off Wilson Creek, Mill
16 Creek water off Wilson Creek, the Forest Service wouldn't
17 object to using this surface water to restore the DeChambeau
18 Ponds and irrigate the meadows and the trees, would it?
19 MR. PORTER: Would you repeat that one more time?
20 MS. BELLOMO: Assuming that you were given, somehow had
21 a legal right, either given, bestowed or dedicated to you so
22 that you legally had a right to use Mill Creek water year
23 round, taking it through your DeChambeau ditches or new
24 ditches, the Forest Service wouldn't object to using this
25 surface water to restore the DeChambeau Ponds and irrigate
01 the meadows and trees of DeChambeau Ranch, would it?
02 MR. DODGE: Objection. Calls for speculation.
03 MR. GIPSMAN: Objection calls for speculation.
04 I am going to question the relevancy of this line of
05 questioning. I don't understand anymore what this has to do
06 with Forest Service comments on the Restoration Waterfowl
08 CHAIRMAN CAFFREY: I will sustain the objection and ask
09 you to explain the relevance of the line of questioning.
10 BOARD MEMBER DEL PIERO: It is a little hard to
12 MS. BELLOMO: We have filed testimony proposing that
13 the Forest Service utilize surface water for DeChambeau
14 Ponds instead of the line of drilling scenario. And I don't
15 know that I am going to have any other opportunity to find
16 out if the Forest Service is willing to use surface water
17 for the DeChambeau Pond rather than drill.
18 BOARD MEMBER BROWN: Maybe just ask.
19 CHAIRMAN CAFFREY: Mr. Brown said maybe just ask, which
20 I think is what you are trying to do.
21 MS. BELLOMO: What I am trying to do. Maybe I didn't
22 ask --
23 CHAIRMAN CAFFREY: Mr. Frink, are you going to say
25 MR. FRINK: Yes, Mr. Chairman. I think we have to
01 limit ourselves in this hearing to the proposed restoration
02 plans that the City of Los Angeles has submitted, and if we
03 get into potential plans of the Forest Service might do for
04 some other reason, I think we are beyond the scope of the
06 CHAIRMAN CAFFREY: Aren't we getting into a level of --
07 again, this is hard to define. We are getting beyond, far
08 beyond the conceptual in terms of specific details of what
09 might be part of another meeting at a later date or even, at
10 least, an environmental process, or am I missing something?
11 MR. FRINK: I think the sort of issues that Ms. Bellomo
12 is addressing are the sort of environmental issues that will
13 have to be addressed in weighing the benefits between Mill
14 and Wilson Creek if the project were to proceed on Mill
15 Creek, yes. But as you indicated in your opening statement,
16 the Board cannot decide on the City's water right
17 application for Mill Creek in this proceeding.
18 CHAIRMAN CAFFREY: I hate to stifle you, Ms. Bellomo,
19 but according to instructions I gave at the beginning, if
20 this proposal proceeds, there will be environmental
21 documentation process. We talked earlier in the hearing,
22 there was testimony and discussion about what the order of
23 events that would be and what the Board would be required to
24 do and not do in terms of all that. And so there will be
25 ample opportunity to go into this kind of detail at that
01 time, I would think so.
02 MS. BELLOMO: I certainly will abide by your ruling.
03 If I could just ask for clarification because now I am
04 genuinely confused.
05 The People for Mono Basin Preservation have put forward
06 our proposal for how to spread the water around to satisfy
07 different interests, environmental interests. I know the
08 State Lands Commission has done the same. The Mono Lake
09 Committee has another variation or proposal.
10 To what extent can we conduct cross-examination about
11 those proposals of other witnesses? I am just confused.
12 CHAIRMAN CAFFREY: Well, you haven't given direct,
14 Mr. Frink, you want to answer the legal question here?
15 MR. FRINK: I will attempt to. The focus of the
16 hearing is still on the proposal that the City of Los
17 Angeles has submitted. To the extent that other witnesses
18 or parties identify what they believe is a preferable method
19 of accomplishing similar objectives, that may give the Board
20 reason to give the City of Los Angeles some other direction
21 regarding its Waterfowl Habitat Restoration Plan.
22 It is difficult. I mean, we have indicated that in order
23 to go ahead with this, there would be other proceedings
24 before the Board.
25 I think the opening comments about addressing this more
01 at a conceptual level rather than all of the details of
02 every possible alternative proposal is the best way to go.
03 Because I think we will be here forever in this process.
04 Whereas, those alternatives would more properly have to be
05 addressed in the environmental documentation process under
06 CEQA and/or NEPA.
07 MR. BELLOMO: I think I can proceed with that.
08 CHAIRMAN CAFFREY: I think the short version would be
09 -- thank you, Mr. Frink, appreciate that -- would be to keep
10 it as general and conceptual as you can and use your best
11 judgment as to what details mean. And as we go along, if we
12 have a problem, we will let you know.
13 MS. BELLOMO: Okay.
14 CHAIRMAN CAFFREY: Please try to keep it more general
15 than you have been.
16 MS. BELLOMO: Thank you for the clarification.
17 I will try to tie this in, tying this into the DWP
18 plan, as I understand it.
19 When the scientists talked about restoration of
20 DeChambeau Pond, correct me if you recall differently, my
21 recollection is that their recommendation involved drilling
22 to obtain water for DeChambeau Pond; is that correct, and
23 for county ponds?
24 MR. PORTER: Well, that is somewhat correct. There
25 were three things that were looked at in DeChambeau Pond in
01 the environmental analysis. One was using the existing
02 water rights from Mill Creek. Second was constructing a
03 pipeline, either from Conway Ranch or from Cemetery Road to
04 DeChambeau. And the third was drilling wells.
05 In terms of whose decision was that, that was -- the
06 decision to drill wells was the decision of the then
07 District Ranger.
08 MS. BELLOMO: Did the waterfowl scientists endorse the
09 restoration of DeChambeau Pond through drilling?
10 MR. PORTER: What do you mean by the "waterfowl
12 MS. BELLOMO: The three scientists who prepared the
13 report that is in the Department of Water and Power
14 Restoration Plan.
15 MR. PORTER: No. Those three scientists were
16 consultants hired by DWP for purposes of making
17 recommendations on waterfowl habitat and, other than the
18 fact that Chris Reise works for Ducks Unlimited, it was
19 Ducks Unlimited who we were working with, not the waterfowl
21 And by the time the waterfowl scientists were on board,
22 the decisions regarding DeChambeau Ranch had already been
24 MS. BELLOMO: As I understand what you said, the
25 scientists looked at three scenarios for rewatering, once
01 they were restoring DeChambeau Pond?
02 MR. PORTER: No. We looked at --
03 MS. BELLOMO: You looked at three. Is it your
04 understanding that the scientists only considered the
05 drilling alternative?
06 MR. DODGE: Objection. Unintelligible. No foundation.
07 These scientists as a group did not look at the DeChambeau
08 Ranch Project. It was basically done by the time they
10 MR. PORTER: I think we need -- let me see if I can
11 clarify where I think you are a little bit confused.
12 The scientists, the waterfowl scientists, did look at
13 the County Pond. But what has been referred to as Phase I
14 in these hearings was started in about '92, and all of the
15 planning for it had been completed by the time the
16 waterfowl scientists went to work for DWP.
17 MS. BELLOMO: So, the waterfowl scientists
18 recommendation pertaining to restoring County Ponds --
19 MR. PORTER: That's correct.
20 MS. BELLOMO: Was the recommendation to attempt
21 drilling to get water for County Pond?
22 MR. PORTER: Drilling a well is a part of their cost
23 estimate, yes.
24 MS. BELLOMO: My question is: Would the Forest Service
25 have any objection to using surface water from Wilson Creek
01 instead of drilling, in order to restore the County Ponds,
02 if you had water rights that enabled you to do so?
03 MR. PORTER: It depends. There are several things.
04 Again, that is a question that can be better answered after
05 analysis is down of Wilson Creek and Mill Creek. But it
06 will also come down to such things as cost. Is it cheaper
07 to supply the water with groundwater pumping than it is to
08 put a pipeline in as a delivery system?
09 MS. BELLOMO: What about through ditches?
10 MR. PORTER: Or through ditches. And then annual
11 maintenance of the ditches. So, there is quite a bit in
12 terms of information needed before the Forest Service would
13 be willing to make a decision.
14 MS. BELLOMO: The United States Forest Service applied
15 for a Congressional award related to DeChambeau Restoration
16 Project, correct?
17 MR. PORTER: We were nominated. That is a little
18 different than applied for.
19 MS. BELLOMO: Did you receive the award?
20 MR. PORTER: Yes, we did.
21 MS. BELLOMO: Now I would like to direct your attention
22 to the photographs that are in R-PMBP-4. This is three
23 pages of photographs, totalling six photos.
24 MS. SCOONOVER: Mr. Caffrey, if I might interrupt.
25 Excuse me, Ms. Bellomo. I would ask whether or not the
01 People for Mono Basin Preservation have an additional color
02 photocopy. We were given black and white prints and we
03 can't discern much or read the labeling underneath the
04 photos. If there are additional copies, we would appreciate
05 it. We didn't realize that they were going to be used
06 today, or we would have talked outside the presence of the
08 CHAIRMAN CAFFREY: I have a color copy up here which
09 I'd be glad to offer.
10 You have one there, Jim? Thank you.
11 MR. DODGE: We served them on time, so we got a color
13 MS. BELLOMO: Random who got them.
14 CHAIRMAN CAFFREY: All right. Please proceed.
15 Everybody have access to a color copy that feels they need
16 one? We will pass it around, if not.
17 Please proceed.
18 MS. BELLOMO: Do you recognize these photographs as
19 being taken at DeChambeau Pond?
20 MR. PORTER: Yes, I do.
21 MS. BELLOMO: Would you agree that these photographs
22 accurately represent approximately the way this location
23 looks today? These are taken January 3rd.
24 MR. PORTER: That is pretty much. The only thing that
25 might be different, they might have more snow on them today
01 than they did January 3rd.
02 MS. BELLOMO: Not to be rude, because we were happy you
03 got the Congressional award out there, would you agree that
04 as it turned out, this restoration project, in fact, failed?
05 (Discussion held off record.)
06 MR. PORTER: Would rephrase that question?
07 On second thought, don't rephrase that question.
08 Actually, I will explain. Number one, the award was
09 not for habitat. The award was for effective partnership in
10 planning process, which I think it was.
11 And then, what was the second part of the question?
12 MS. BELLOMO: That answered my question. That is, I
13 was asking if the project was a failure, but that is fine.
14 Would you agree at this point -- let me back up for a
16 Before you started Phase I, how many ponds were there
17 at DeChambeau Ponds?
18 MR. PORTER: As I recall, when I came here in 1980, I
19 believe there were a total of four ponds.
20 MS. BELLOMO: Did the Phase I add another pond or not?
21 I don't know; I am just asking.
22 MR. PORTER: Yes, it did. It added a fifth pond that
23 is intended to be seasonal in nature.
24 MS. BELLOMO: Would you agree that, at this time, the
25 pond that is shown on the first page of the photographs in
01 PMBP-4, on the bottom photograph, is the only pond that
02 currently has water in it?
03 MR. PORTER: No. The hot water has maintained what we
04 call ponds one and two, the two ponds on the north end of
05 the ranch. And I think what you are looking at, although I
06 can't be positive, I think what you are looking at in the
07 bottom photo on the first page --
08 Is that the one you are referring to.
09 MS. BELLOMO: Yes.
10 MR. PORTER: I think that's pond three, the edge of
11 pond three. Because it is a pond that has been reworked.
12 We have not reworked one and two. And what you are seeing
13 in the way of water, that is rain water from the January
15 MS. BELLOMO: Thank you for refreshing my recollection.
16 I remember that now. Now, the Forest Service -- I think
17 you referenced earlier in your testimony that you drilled a
18 well. You have a well with a pump, right, that was planned
19 to be used for watering these ponds?
20 MR. PORTER: That's correct.
21 MS. BELLOMO: What is the reason that that well was
22 abandoned and pumping was stopped?
23 MR. PORTER: The reason the pumping was stopped is that
24 after -- basically, the original part of the work entailed
25 putting in new weirs and doing repair work on the dikes
01 inbetween the ponds, and also drilling a fresh water well to
02 be pumped by a propane generator for purposes of supplying
03 water to the pond. After that work had been completed, when
04 water was pumped back into the ponds, the ponds no longer
05 held water.
06 That took Ducks Unlimited by surprise, in that the
07 ponds had held water prior to being dried up, both during
08 the drought and then, in the first season or so, when the
09 land was in the ownership of Mammoth Mountain.
10 MS. BELLOMO: How long did you actually try to pump?
11 For what period of time did you try to pump enough water to
12 get the pond to hold water?
13 MR. PORTER: Well, pond three, which is about an acre
14 and a quarter in size, we pumped it for 30 straight days,
15 pumped water into it at the rate of about 450 -- somewhere
16 between 400 and 500 gallons a minute for 30 straight days.
17 MS. BELLOMO: How much did that cost?
18 MR. PORTER: Too much. Spent approximately $10,000 in
20 MS. BELLOMO: Maybe the local rumor is incorrect, but
21 my understanding is at that point you ran out of money, and
22 you said we can't keep pumping this way.
23 Is that correct?
24 MR. PORTER: We certainly -- I don't know if it's
25 accurate to say we ran out of money. We did not see the
01 point in continuing to pump. We knew the ponds were not
02 sealing. The purpose of pumping the 30 days was simply to
03 see if you got the ponds wet, would whatever clay was in the
04 soil expand and seal itself.
05 MS. BELLOMO: Would you agree that during this
06 1996-1997 fall and winter season, that DeChambeau Ponds did
07 not have functional waterfowl habitat?
08 MR. PORTER: You are talking then this fall and this
10 MS. BELLOMO: Right.
11 MR. PORTER: No. Ponds one and two, other than having
12 people and equipment out there working, which does,
13 obviously, disrupt waterfowl, ponds one and two have had
14 water in them full time.
15 MS. BELLOMO: You agree that they are considerably
16 smaller than they were prior to the period when they went
17 dry, wouldn't you?
18 MR. PORTER: No. Because ponds one and two never did
19 go dry, because they've always had the hot water artesian.
20 They've never been dry.
21 MS. BELLOMO: Would you agree that they are smaller
22 than they were when irrigation water was entering them?
23 MR. PORTER: If you have a continuous supply of
24 unlimited water, basically, you can make them as big as what
25 you want.
01 MS. BELLOMO: So, the answer is yes?
02 MR. PORTER: So, the answer is, yes, if you run 25 cfs
03 directly into the ponds all summer long, you can keep them
05 MS. BELLOMO: Are you saying that is what was done in
06 the past?
07 MR. PORTER: Sometimes, yeah.
08 MS. BELLOMO: By the Forest Service?
09 MR. PORTER: No.
10 MS. BELLOMO: Are you basing that on hearsay or --
11 MR. PORTER: I remember seeing it in the early 1980s
12 when I first came to the base.
13 MS. BELLOMO: Who measures the water?
14 MR. PORTER: I don't think anybody did back then.
15 MS. BELLOMO: Who estimated 25 cfs?
16 MR. PORTER: Just a guess.
17 MS. BELLOMO: You mentioned that because of the people
18 and a lot of heavy equipment being out at the area, that
19 that has limited the value of the ponds for waterfowl
20 habitat during the last fall and winter, correct?
21 MR. PORTER: I am saying that I suspect that for the
22 amount of time that work was being conducted that affected,
23 to some degree, waterfowl.
24 MS. BELLOMO: Have you been out there at any time in
25 the fall of '96 or winter of '97 and seen any significant
01 numbers of waterfowl habitat at Dechambeau Ponds?
02 MR. PORTER: On ponds one and two, my observation, I
03 have seen less ducks on ponds one and two this winter than
04 last winter, but it is also my observation that I have less
05 ducks in the basin this year than last year.
06 MS. BELLOMO: What are the most ducks you have seen out
07 in ponds one and two this last fall and winter?
08 MR. PORTER: This fall and winter?
09 MS. BELLOMO: Yes.
10 MR. PORTER: At any one time, probably no more than
12 MS. BELLOMO: Has the Forest Service started its test,
13 drilling for the test wells for use in Dechambeau ponds?
14 MR. PORTER: No, we have not attempted to drill a
15 second well yet.
16 MS. BELLOMO: What affect does the Forest Service think
17 that the pumping, groundwater pumping, for the county ponds
18 would have on the lake fringing wetlands northeast of the
19 County Ponds?
20 MR. PORTER: We don't have the information necessary to
21 answer that question. That would be part of an
22 environmental analysis that would need to be done prior to
23 drilling a second well.
24 MS. BELLOMO: So, I take it that the Forest Service
25 hasn't made any commitment at this point that they are going
01 to do test well drilling until they have done some
02 environmental assessment?
03 MR. PORTER: I think it is more accurate to say -- I
04 think that is probably accurate.
05 MS. BELLOMO: Do you have any schedule set up for
06 studying that issue so you can make a determination as to
07 whether it is prudent to pursue the drilling approach?
08 MR. PORTER: Is your question, do we have a timetable?
09 MS. BELLOMO: Yes.
10 MR. PORTER: I would say we do. What it is, more or
11 less, step by step; the first thing we want to see done and
12 see work, is for the job of sealing the bottom of the ponds
13 with bentonite to be complete. At that point in time, we
14 then want to assess how well the ponds are sealed and what
15 the water demand for the project really is. Based on the
16 water demand, that will then help us decide what makes the
17 most sense with providing water to the project.
18 MS. BELLOMO: If you decide to drill wells, who is
19 going to pay for it?
20 MR. PORTER: If we were to drill a well right now, it
21 would be either Forest Service money, or we would have to
22 get some sort of grant money.
23 MS. BELLOMO: Moving to my questions here; I see I am
24 on the yellow light.
25 CHAIRMAN CAFFREY: You still have one minute.
01 MS. BELLOMO: Thank you.
02 Looking back at the photograph, R-PMBP-4, look at the
03 top photograph, do you recognize this as a photograph of the
04 bags of bentonite that were delivered to the Dechambeau Pond?
05 MR. PORTER: Yes, I do.
06 MS. BELLOMO: Would you agree that, as of last Sunday,
07 the bags were still out there, and now they were covered
08 with blue tarp to keep the water off them, the rain?
09 MR. PORTER: Yes.
10 MS. BELLOMO: You indicated that there only five more
11 days necessary to complete the --
12 MR. PORTER: Yes.
13 MS. BELLOMO: -- betonite restoration of the ponds?
14 MR. PORTER: Yes.
15 MS. BELLOMO: When did they start this project?
16 MR. PORTER: I would have to look to be certain, but
17 sometime in December, I believe.
18 MS. BELLOMO: No further questions.
19 CHAIRMAN CAFFREY: Thank you very much, Ms. Bellomo.
20 It is just about 3:00; let's take a ten-minute break
21 and come back and go for a little while longer.
22 (Break taken.)
23 CHAIRMAN CAFFREY: Lets resume.
24 MR. GIPSMAN: Before we continue with cross --
25 CHAIRMAN: Yes, sir.
01 MR. GIPSMAN: -- I have a little housekeeping matter.
02 I would like to have Mr. Porter's statement identified as
03 U.S. Forest Service 2.
04 CHAIRMAN CAFFREY: All right. Got that staff?
05 MR. JOHNS: Yes.
06 CHAIRMAN CAFFREY: Thank you, staff.
07 MR. GIPSMAN: Mr. Porter has found the reference page
08 number to the Scenic Area Plan in response to a question.
09 CHAIRMAN CAFFREY: Did you hear that, Ms. Bellomo, and
11 MS. BELLOMO: Yes.
12 CHAIRMAN CAFFREY: And the reference is?
13 MR. PORTER: The reference is Page 49, the Mono Basin
14 National Forest Scenic Area Comprehensive Management Plan,
15 Page 49, under Scenic Area Standards and Guidelines, Subpart
17 Would the Chairman like me to read that?
18 CHAIRMAN CAFFREY: I think we were just looking for the
20 Thank you.
21 Did everybody hear it?
22 Let me just say, in keeping with what the initial dates
23 we added to the schedule and what I said yesterday about not
24 going in the night sessions, we will target today's
25 adjournment for about a quarter to five. Trying to get as
01 much done as we can by then.
02 All right. We had finished Ms. Bellomo's
04 Is Mr. Haselton here?
05 Okay. Mr. Ridenhour has left.
06 Mr. Roos-Collins. There you are, sir.
07 Good afternoon and welcome.
10 BY CALIFORNIA TROUT
11 BY MR. ROOS-COLLINS
12 MR. ROOS-COLLINS: Afternoon, Mr. Chairman. Good
13 afternoon, Mr. Porter.
14 MR. PORTER: Good afternoon to you, sir.
15 MR. ROOS-COLLINS: I have one issue to address with
16 you, and that is Paragraph 5 in your statement, which is now
17 identified as an exhibit, Forest Service Exhibit 2.
18 In that paragraph you recommend that Edison should be
19 consulted to determine if there is any viable way for them
20 to contribute to finding solutions to some of the logistical
21 problems identified by Los Angeles in delivering water to
22 Rush, Lee Vining and Mill Creeks.
23 Has the Forest Service consulted with Edison with
24 regard to its operation of its hydropower project on Rush
25 Creek for this specific purpose?
01 MR. PORTER: On Rush Creek for the specific purpose --
02 MR. ROOS-COLLINS: If there was a viable way for Edison
03 to contribute to finding solutions to some of Los Angeles'
05 MR. PORTER: I think what we have done, we have talked
06 informally with Southern California Edison. But as far as
07 talking to them formally in a meeting setting, specifically
08 regarding flows in Rush Creek, the answer is no.
09 MR. ROOS-COLLINS: You mentioned earlier that FERC is
10 undertaking a proceeding for issuance of a new license for
11 Edison's Rush Creek project.
12 MR. PORTER: That's correct.
13 MR. ROOS-COLLINS: In connection with that proceeding,
14 has the Forest Service submitted Section 40 conditions to
15 the Federal Energy Regulatory Commission?
16 MR. PORTER: Yes, we have.
17 MR. ROOS-COLLINS: Do those conditions address
18 coordination between Edison and Los Angeles, again, for the
19 specific purpose identified in Paragraph 5 of your
21 MR. PORTER: Not to best of my knowledge, no.
22 MR. ROOS-COLLINS: Are the conditions draft or final?
23 MR. PORTER: My understanding of where it is at in the
24 process, is that they would be final if they were submitted
25 and then the FERC license was appealed by SCE. And where it
01 is at in the status now, is that the appeal will -- the hope
02 is that the appeal will be resolved by no later than the
03 Fall of '97.
04 MR. ROOS-COLLINS: The same question for Edison's
05 project on Lee Vining Creek?
06 MR. PORTER: Same answer.
07 MR. ROOS-COLLINS: You have informally consulted; you
08 have issued Section 40 conditions?
09 MR. PORTER: Yes, we have.
10 MR. ROOS-COLLINS: You do not believe that those
11 Section 40 conditions address coordination between Edison
12 and Los Angeles for the specific purpose identified in
13 Paragraph five?
14 MR. PORTER: That's correct.
15 MR. ROOS-COLLINS: Mr. Gipsman, is the Forest Service
16 willing to provide the Section 40 conditions to which Mr.
17 Porter just referred to the Board and parties?
18 MR. GIPSMAN: Yes.
19 MR. ROOS-COLLINS: Thank you. No further questions.
20 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.
21 Department of Fish and Game, Ms. Murray.
01 CROSS EXAMINATION
02 BY DEPARTMENT OF FISH AND GAME
03 BY MS. MURRAY
04 MS. MURRAY: Good afternoon. The Department has only
05 a few questions. Ms. Bellomo was very thorough. I just
06 want to confirm what you said about the Dechambeau Pond
07 Phase I.
08 Is it correct that a NEPA document and environmental
09 assessment was done?
10 MR. PORTER: That's correct.
11 MS. MURRAY: So, if you were given NEPA documents,
12 would the U.S. Forest Service analyze and make decisions
13 for each particular project rather than waiting for one
14 large environmental analysis to be done, one comprehensive
15 that had every project in it, or would you be willing to
16 make your decision on a case-by-case, project-by-project
18 MS. BIRMINGHAM: Objection. Calls for speculation.
19 MR. GIPSMAN: Also, it is a pretty broad question. If
20 she could be more specific with the question, I think it
21 would help in getting an intelligible answer.
22 CHAIRMAN CAFFREY: Why don't you try it again, Ms.
24 MS. MURRAY: There was one project, DeChambeau Ponds,
25 Phase I.
01 MR. PORTER: Correct.
02 MS. MURRAY: An environmental analysis was done and a
03 decision was made?
04 MR. PORTER: Correct.
05 MS. MURRAY: If you were given another project, County
06 Pond, just an environmental analysis for just that project,
07 would you make a decision for just that project?
08 MR. GIPSMAN: Again, I will renew the objection on the
09 basis of speculation this time. Also, I think the law
10 provides, under NEPA, that any project would have to look at
11 cumulative effect. So, she maybe asking the witness for a
12 legal conclusion.
13 CHAIRMAN CAFFREY: Certainly, a question they don't
14 feel they are able to answer.
15 MR. MURRAY: I will move on.
16 Does the Forest Service have lands with potential pond
17 sites other than that identified?
18 MR. PORTER: Pond or scrapes?
19 MS. MURRAY: Including scrapes.
20 MR. PORTER: I think it is different. I feel more
21 comfortable saying that in terms of scrapes, yes, there is
22 Forest Service land out toward Simis Springs, that there is
23 the potential for scrapes.
24 As far as ponds, I think what we are really talking
25 about is the issue of having to drill more wells to provide
01 water for ponds. I don't know of any other areas in which
02 water is naturally occurring that you would call it a pond.
03 I am not saying there isn't any; I am saying I don't know of
05 MS. MURRAY: Do you recall the cost estimate by the
06 three scientists on the Black Point Scrapes Project?
07 MR. PORTER: On the scrape itself? No, not without
09 MS. MURRAY: Did you have three scientists --
10 MR. PORTER: Not in front of me.
11 MS. MURRAY: Can I show it to you?
12 MR. PORTER: Yes.
13 MS. MURRAY: This is Page 90 of the three scientists'
14 report, Appendix I.
15 So, is it correct to say at Page 90 of Appendix I of
16 the plan, the three scientists' report, that the estimate
17 and cost for the scrapes is $25,000?
18 MR. PORTER: That is correct.
19 MS. MURRAY: Would you say that the cost of scrapes,
20 the $25,000, is significantly less than the County Ponds'
21 estimate at $638,437?
22 MR. PORTER: According to my math, it is
23 substantially, yes.
24 MS. MURRAY: It is substantially less and there are
25 other places that are on U.S. Forest Service land that
01 scrapes could be done?
02 MR. PORTER: Yes. Again, keep in mind that, as a
03 proposal, scrapes can certainly be looked at, but, again,
04 you would be looking at doing an environmental assessment
05 for those scrapes.
06 MS. MURRAY: With that one scrape.
07 In your testimony, you discussed large woody debris and
08 indicate that LADWP appears to propose obtaining large woody
09 debris from the floodplain and Cain Ranch.
10 In your opinion, could the large woody debris now in
11 the floodplains serve as important habitat for wildlife?
12 MR. PORTER: Well, what I have been told by our
13 specialists, yes, it could.
14 MS. MURRAY: Thank you. That is all.
15 CHAIRMAN CAFFREY: Thank you, Ms. Murray.
16 See Mary Scoonover.
19 BY STATE LANDS COMMISSION AND
20 DEPARTMENT OF PARKS AND RECREATION
21 BY MS. SCOONOVER
22 MS. SCOONOVER: I should have just a few questions for
23 you, Mr. Porter.
24 You were questioned quite extensively before about the
25 FERC relicensing process.
01 Do you recall those questions?
02 MR. PORTER: Yes, I do.
03 MS. SCOONOVER: Did the FERC relicensing process
04 address waterfowl habitat?
05 MR. PORTER: Not in my opinion.
06 MS. SCOONOVER: Were the Forest Service recommendations
07 on Mill Creek Road or releases from Mill Creek based on
08 waterfowl habitat restoration?
09 MR. PORTER: Not in my opinion.
10 MS. SCOONOVER: You were asked a number of questions
11 regarding Item Number 4 of your testimony, in which you
12 state that the Inyo National Forest support the restoration
13 of Mill Creek.
14 Do you recall that testimony?
15 MR. PORTER: Yes, I do.
16 MS. SCOONOVER: Do you agree with the statement found
17 on Page 93 of the Mono Basin Waterfowl Habitat Restoration
18 Plan, part of the scientists' recommendation, middle
20 In overall importance to waterfowl, we
21 consider the restoration of riparian and
22 deltaic wetlands habitat on Mill Creek only
23 second to raising the level of Mono Lake to
24 6392 feet. (Reading.)
25 Do you agree with that?
01 MR. BIRMINGHAM: I am going to object on the grounds it
02 calls for the opinion of this witness who is not qualified.
03 MS. SCOONOVER: I believe this witness has expressed an
04 opinion as to the importance of Mill Creek to the overall
05 restoration efforts. Ms. Bellomo questioned him at some
06 length about the basis of that.
07 CHAIRMAN CAFFREY: Are you qualified to answer the
08 question, sir?
09 MS. SCOONOVER: I will withdraw it. It's late. We
10 will go a different route.
11 Mr. Porter, is the United States Forest Service's
12 support of Mill Creek restoration efforts, as described in
13 the waterfowl scientists' plan, based on the waterfowl
14 scientists' recommendations, at least in part?
15 MR. PORTER: Would you repeat that?
16 MS. SCOONOVER: Is the U.S. Forest Service's support of
17 rewatering Mill Creek based, in part, on the recommendations
18 of the three waterfowl scientists, Fritz, Drewien, and
20 MR. PORTER: I think it is probably accurate to say, in
21 part, that support for Mill Creek restoration is also based
22 on the direction that is provided for in the Scenic Area
24 MS. SCOONOVER: Thank you. That is all.
25 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
01 Bruce Dodge, Mr. Dodge.
04 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE
05 BY MR. DODGE
06 MR. DODGE: Well, that was awfully fast. I am not sure
07 I can organize my thoughts here, but I will try.
08 Mr. Porter, I thought I heard you say, at least I wrote
09 it down, that FERC was close to issuing a license for Lundy.
10 Did you testify to that?
11 MR. PORTER: Yes, I did.
12 MR. DODGE: On what do you base that?
13 MR. PORTER: I base that on talking with our district
14 land officer.
15 MR. DODGE: When do you expect such a license to be
17 MR. PORTER: Either for Rush Creek or for Mill Creek,
18 one of the two, the talk is sometime in the fall of '97.
19 MR. DODGE: My question is specifically to Lundy.
20 MR. PORTER: Lundy is behind Rush Creek, and I am not
21 sure of the date for Lundy. Because I believe it is Rush
22 Creek coming out, around the fall of '97.
23 MR. DODGE: That isn't what I understand. I have heard
24 that the license for Lundy is not expected in the near
01 MR. PORTER: Yes. That is new information to me. I
02 haven't heard that much.
03 MR. DODGE: Can you tell us -- as I understand it, one
04 of the issues is the amount of constant flow that SCE has to
05 release from the Lundy Reservoir. Is that your
06 understanding, also?
07 MR. PORTER: If you are referring to minimum flows,
09 MR. DODGE: What positions have the various parties
11 MR. PORTER: My recollection of the exact numbers are,
12 I believe, SCE recommended 4 cfs. Forest Service
13 recommended 7 cfs, and, I believe, Fish and Game recommended
14 11 cfs. That may have been 12.
15 MR. DODGE: Thank you.
16 Now, you mentioned that there were five working days
17 left, in your judgment, in order to finish the work, as I
18 understood it, to seal the DeChambeau Pond, correct?
19 MR. PORTER: That's correct.
20 MR. DODGE: Was the work, in effect, stopped by
21 inclement weather.
22 MR. PORTER: Yes. It was combination of two things,
23 inclement weather and the type of weather. Basically, the
24 ponds were mostly sealed and, when we got that unusual
25 rainstorm the first week of January, we found out that it
01 would appear the ponds will hold water. And. Therefore,
02 they're too muddy to get heavy equipment back into them.
03 MR. DODGE: In effect, the success of the project has
04 caused it to stop?
05 MR. PORTER: That's kind of the way we look at it,
07 MR. DODGE: I was going to ask you whether you have an
08 interim judgment as to how the sealing work is going?
09 MR. PORTER: I sure wouldn't want -- at this point, I
10 sure wouldn't want to speculate too much. But I think I
11 would be willing to say, it's going to be much better than
12 it was before.
13 MR. DODGE: Just one more area of questions.
14 Now, you've testified that you support rewatering Mill
15 Creek, correct?
16 MR. PORTER: Yes.
17 MR. DODGE: You, the Forest Service. And in part that
18 support is based on the scientists' proposal, correct?
19 MR. PORTER: Correct, in part.
20 MR. DODGE: You have told us, if my notes are right,
21 that the Forest Service has not used Mill Creek water on
22 DeChambeau Ranch since approximately 1992, correct?
23 MR. PORTER: Correct, approximately.
24 MR. DODGE: One of the reasons for that, as I
25 understood it, was that the ditch no longer worked?
01 MR. PORTER: Not that it would not work. You could get
02 water over to the ranch through the ditch, but the ditch
03 leaked a lot of water. So, in order to get water to the
04 ranch, you might have to put as much as 25 cfs in the ditch,
05 and then I think when we did it in '92, the person that did
06 it estimated that it took about two and a half weeks for the
07 ditch to seal up well enough for water to actually,
08 physically get to the ranch.
09 MR. DODGE: You don't have a right to 25 cfs, do you?
10 MR. PORTER: No, we don't.
11 MR. DODGE: I believe you also testified, one problem
12 with taking water is you can't measure what you're taking?
13 MR. PORTER: That's correct.
14 MR. DODGE: Your water right is 12.6 cfs after the
15 first 43 cfs; am I right?
16 MR. PORTER: I believe it was 40 cfs.
17 MR. DODGE: On order of magnitude, it is one of those
19 MR. PORTER: Correct.
20 MR. DODGE: Given that you support rewatering Mill
21 Creek and given that you support the scientists'
22 recommendation and you are not, for the past few years,
23 using the Dechambeau water at the ranch, in your judgment,
24 would the Forest Service consider dedicating your water
25 rights to return it to Mill Creek?
01 MR. PORTER: I think two things. One, again, I would
02 say it is the same question with the same answer, that we
03 want to see the analysis done on Wilson Creek and Mill
04 Creek, and based on that analysis, we then would be willing
05 to look at alternate uses of our water.
06 MR. DODGE: Who, ultimately, at Forest Service would
07 make that decision?
08 MR. PORTER: I believe it would be the Forest
09 Supervisor of the Inyo National Forest.
10 MR. DODGE: Who is that individual today?
11 MR. PORTER: Dennis Martin.
12 MR. DODGE: Do you think we can get him on the stand
14 MR. PORTER: You did before.
15 MR. DODGE: No further questions.
16 Thank you, sir.
17 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
18 Mr. Gipsman, do you have redirect?
19 MR. GIPSMAN: No, I don't.
20 Does the Board staff have any questions?
21 CHAIRMAN CAFFREY: I did it again. I am sorry. Just
22 happens when it gets late in the afternoon.
23 Forgive me Mr. Canaday.
24 MR. DODGE: I am glad we are finally getting someone to
25 accept my definition of what is late.
01 CHAIRMAN CAFFREY: You broke my chops.
03 CROSS EXAMINATION
04 BY BOARD STAFF
05 MR. CANADAY: Mr. Porter, just for clarification, the
06 County proposed a project to be called County Ponds or Black
07 Point Scrapes are, in fact, on federal land, U.S. Forest
08 Service land?
09 MR. PORTER: Yes, they are.
10 MR. CANADAY: Is the U.S. Forest Service the last
11 diverter on Wilson Creek, legal diverter?
12 MR. PORTER: I believe so.
13 MR. CANADAY: Can you show on LADWP-65 approximately
14 where on Wilson Creek that the Forest Service would divert?
15 MR. PORTER: Be approximately right here, where Wilson
16 Creek crosses the Cemetery Road.
17 MR. CANADAY: Where Cemetery Road bisects Wilson Creek
18 on the map, that would be the point of diversion into --
19 that would be called Lower DeChambeau Ditch?
20 MR. PORTER: That's correct.
21 MR. CANADAY: Thank you.
22 Based on your experience as Scenic Area Manager, if, in
23 fact, the Forest Service did decide to dedicate their water
24 back to Mill Creek, that would require a NEPA analysis by
25 the Forest Service, would it not?
01 MR. PORTER: Yes, it would.
02 MR. CANADAY: The cfs, the recommendation through the
03 FERC relicensing of the Lundy project, in the 40 comments of
04 the Forest Service, your recommendation was for a 7 cfs
05 bypass to support the fishery. Is that correct?
06 MR. PORTER: That's correct, to the best of my
08 MR. CANADAY: That fishery -- was the 7 cfs fisheries'
09 minimum release to support fisheries from Lundy Dam all the
10 way to the mouth of Mill Creek, or someplace shorter than
12 MR. PORTER: Someplace shorter than that.
13 MR. CANADAY: Where Highway 395 crosses?
14 MR. PORTER: That is what I recollect, is that the
15 fishery would be from 395 back to the dam.
16 MR. CANADAY: Thank you.
17 Let me make sure I understood.
18 In the Scenic Area Plan, on Page 49, Subpart B, it does
19 refer to the maintenance. The plan supports the concept of
20 maintenance of Wilson Creek; is that correct?
21 MR. PORTER: It doesn't use the word "maintenance."
22 Would you like me to read it?
23 MR. CANADAY: Yes, please. Is it very long?
24 MR. PORTER: Not at all. It says:
25 Negotiating with public utility entities and
01 other effective parties to return water to
02 portions of the following dewatered streams:
03 Rush Creek, Lee Vining Creek, Mill Creek, and
04 Wilson Creek. (Reading.)
05 MR. CANADAY: So, if the Forest Service, as the last
06 diverter on Wilson Creek, were to choose to dedicate their
07 water to, in a sense, comply with one of their objectives of
08 the Scenic Plan, they would have to also get a variance from
09 Scenic Plan, as well, because of its impact on Wilson Creek?
10 MR. GIPSMAN: That calls for a legal conclusion.
11 MR. CANADAY: I will withdraw the question.
12 That is all I have. Thank you.
13 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
14 Anything else from staff?
15 MR. FRINK: No.
18 BY MEMBERS OF THE BOARD
19 CHAIRMAN CAFFREY: Mr. Brown has a question from the
21 BOARD MEMBER BROWN: Mr. Porter, you suggest that a
22 watershed analysis needs to completed. Is that for the Mill
23 Creek watershed area?
24 MR. PORTER: I think for both Mill Creek and if the
25 intent is to take water that has historically has been in
01 Wilson Creek, then both Wilson Creek and Mill Creek need to
02 be analyzed at the same time in order to know what the
03 trade-offs are for doing that.
04 BOARD MEMBER BROWN: What about DeChambeau service area
05 and its tributaries?
06 MR. PORTER: DeChambeau Creek?
07 BOARD MEMBER BROWN: Yes.
08 MR. PORTER: It could be and should be analyzed. At
09 this point in time, what we know about DeChambeau is that it
10 provides some water to Thompson Meadow.
11 BOARD MEMBER BROWN: What is the watershed, say, of
12 Mill Creek? Can you give the magnitude?
13 MR. PORTER: I heard the numbers, but I can't remember.
14 BOARD MEMBER BROWN: Is it a thousand acres or 10,000
15 or a hundred?
16 MR. PORTER: I'd just be guessing. I really can't
17 come close.
18 BOARD MEMBER BROWN: That is all right for now.
19 MR. PORTER: I don't have a guess, is what I want to
21 BOARD MEMBER BROWN: In the watershed as for Mill
22 Creek, how many of that would you estimate is federal land?
23 MR. PORTER: Probably about a total of -- I know there
24 is about two and a half, three miles below 395. So I would
25 guess at maybe four miles of Forest Service. A lot of
01 upstream is SCE.
02 BOARD MEMBER BROWN: The riparian lands that are
03 federal to the creeks?
04 MR. PORTER: Yes.
05 BOARD MEMBER BROWN: What kind of watershed management
06 practices would you be considering in the watershed analysis
07 BMPs, what kind?
08 MR. PORTER: What kind of issues would we be
10 BOARD MEMBER BROWN: Right.
11 MR. PORTER: I think one of the issues that, I think,
12 everyone is in agreement with that we can address, is more
13 efficient transport of water, more efficient use of
14 water. And I think that is a big issue in which there seems
15 to be a lot of agreement, that that is one that we can
16 address and make the water go further.
17 I think the others are all of the environmental
18 considerations that go along with the creek, similar to
19 those types of things that have been addressed on Rush Creek
20 and Lee Vining Creek in terms of the stream scientists'
21 recommendations. So, I would see all of those type of
22 things being addressed.
23 BOARD MEMBER BROWN: Has the Forest Service or, to your
24 knowledge, the Bureau of Land Management used the Soil
25 Conservation Service for any farm plans for those areas?
01 MR. PORTER: For any farm plans?
02 BOARD MEMBER BROWN: Farm or conservation plans.
03 MR. PORTER: I can't speak for BLM. In the case of the
04 Forest Service, I think we have. I think our rain
05 specialists have used the Soil Conservation Service.
06 BOARD MEMBER BROWN: Are any of those federal lands, to
07 your knowledge, are they leased out for grazing purposes?
08 MR. PORTER: Are any of our federal lands?
09 BOARD MEMBER BROWN: Yes.
10 MR. PORTER: Specifically where?
11 BOARD MEMBER BROWN: To the watershed of Mill Creek or
12 Wilson Creek or DeChambeau.
13 MR. PORTER: No. I believe -- in the case of Wilson
14 Creek and Mill Creek, there is not grazing in either of
15 those watersheds on Forest Service land. The grazing
16 allotments that are part of what the Scenic Area Plans was
17 -- had the opportunity arisen to reduce grazing in the
18 Scenic Area, we would not reissue grazing permits. And in
19 the Wilson Creek and Mill Creek, that allotment became
20 vacated, and it has not been reissued.
21 BOARD MEMBER BROWN: When was it vacated?
22 MR. PORTER: In of the case of Wilson Creek, the
23 DeChambeau Ranch itself was base property as part of the
24 grazing allotment. That permit was eliminated when we
25 acquired Dechambeau Ranch back in about 1988. The other
01 allotment, which was called Mono Settlement, was eliminated
02 probably now, about four years ago, that affected Mill
04 BOARD MEMBER BROWN: Are there any leases on your land
05 now, adjacent to these creeks or in the watershed area?
06 MR. PORTER: There is grazing on private land within
07 those watershed areas.
08 BOARD MEMBER BROWN: I mean just yours, the federal
09 land, if you know of, the Bureau of Land Management or your
10 land, Forest Service land.
11 MR. PORTER: All I can say is that all the area
12 encompassed within -- all of the Forest Service land
13 encompassed within what would be a boundary made by Cemetery
14 Road and then back to what would be the north and west, is
15 not grazed other than at least one permittee that trails
16 sheep from Conway Ranch over to south of Cain Ranch and
17 trails them through the Scenic Area, in that general
19 BOARD MEMBER BROWN: Does it cross the creek, the
21 MR. PORTER: No, I don't believe he does. I believe
22 that he takes what is called the Old Highway, so he crosses
23 the creek over a bridge.
24 BOARD MEMBER BROWN: Thank you, Mr. Porter.
25 MR. DODGE: Mr. Chairman we have a witness who can
01 respond to Mr. Brown's question on the area of Mill Creek
02 watershed, if you would like that now.
03 CHAIRMAN CAFFREY: You have a witness who will be
04 giving direct later on, is that what you saying?
05 MR. DODGE: Yes.
06 CHAIRMAN CAFFREY: Is that burning, Mr. Brown? Shall
07 we go to it?
08 BOARD MEMBER BROWN: I can wait.
09 You may remind me of that at the time, Mr. Dodge.
10 MR. DODGE: That is the problem; I will have forgotten.
12 CHAIRMAN CAFFREY: I am sure Mr. Brown will remind you.
13 He's got quite a memory.
14 That completes the cross. Do you have redirect, Mr.
16 MR. GIPSMAN: No, no redirect.
17 CHAIRMAN CAFFREY: Then do you wish to offer your
19 MR. GIPSMAN: Yes. I wish to offer Exhibits 1 and 2.
20 CHAIRMAN CAFFREY: Exhibits 1 and 2, we've got those in
21 hand, staff. Without objection, if there is none, they will
22 be accepted into the record.
23 MR. GIPSMAN: Thank you very much.
24 CHAIRMAN CAFFREY: Thank you, gentlemen, for your
25 appearing today.
01 It is ten to four. We can keep going a little while
03 Bureau of Land Management. Is it Mr. Russi or Russi?
04 MR. RUSSI: Russi.
05 CHAIRMAN CAFFREY: Thank you, sir. Good afternoon,
06 welcome. Thank you for your patience.
07 These mikes aren't the greatest. You may have to pull
08 them a little close.
10 DIRECT EXAMINATION
11 BY THE BUREAU OF LAND MANAGEMENT
12 BY MR. TERRY RUSSI
13 MR. RUSSI: By way of introduction, Mr. Chairman and
14 Members of the Board, my name is Terry Russi. I am the
15 Supervisory Wildlife Biologist for BLM, the Bishop Resource
16 Area, Bishop, California. I have been in that position in
17 the Resource Area for close to 15 years. As far as my
18 educational background, I have a Bachelor of Science and
19 Master of Science Degrees in biology.
20 My primary responsibilities for BLM in the area are
21 extensive. And without going into them in any detail, I
22 will simply say that I have responsibility for all aspects
23 of land management practices that relate to wildlife
24 habitat, which encompasses streams, uplands, and other types
25 of aquatic and nonaquatic environments. I have also had to
01 become, over my tenure with the BLM which now extends to
02 some 18 plus years, knowledgeable in the areas of soils and
04 In citing that, I would I like to lead into just a
05 quick summary of the testimony.
06 CHAIRMAN CAFFREY: Please do, sir.
07 MR. RUSSI: Then, I will make myself available to
08 everyone out here.
09 The reason I am here today representing the BLM stems
10 from our responsibilities under the Federal Land Policy
11 Management Act of 1976. And for the record, that is Public
12 Law 94579. Within that act, the BLM is clearly directed to
13 conduct the management of the public lands in a multiple use
14 and sustained yield practice.
15 Inherent within those guidelines, BLM is also directed
16 at each resource area office, throughout all locations of
17 the United States to develop land management plans which are
18 based upon those principles of multiple use and sustained
20 The Bishop Resource Management Plan of 1993 Record of
21 Decision of that years provides land use decisions which are
22 directly linked to the policy statements found within FLPMA,
23 FLPMA is the acronym for the Federal Land Policy Management
25 As part of our responsibilities under the Resource
01 Management Plan, we are clearly directed to carry out
02 practices which ensure the long-term sustainability, if you
03 will, of public land resources along stream and riparian
04 environments in the resource area.
05 Wilson Creek is 1 of 74 perennial streams, if you will,
06 that occurs within the resource area of the Eastern Sierra
07 portion that we are responsible for. And by the way, the
08 location of our resource area is extending between, for the
09 general audience, from Topaz Lake on the Nevada border at
10 Coleville, California, south to Owens Dry Lake in the Owens
12 In 1978, my agency, although I was not at the Bishop
13 location at that time, my agency had the responsibility of
14 carrying out extensive inventories on all stream systems in
15 the resource area. Over a period of approximately three
16 years, various fisheries' biologists conducted extensive
17 inventories on fish habitat conditions within all of those
18 streams. Wilson Creek was one of those streams.
19 And before I go any further, I should state that thanks
20 to the exhibit up here -- I don't see another number.
21 MR. JOHNS: 65.
22 MR. RUSSI: You will note, based on the coloration of
23 the map, the three separate segments of Wilson Creek that
24 occur on BLM land. It just so happens that the 1978
25 inventory that was done on Wilson Creek for fish habitat
01 conditions, was not on any of those three segments. It was
02 on a segment of stream that is now within the U.S. Forest
03 Service ownership.
04 That information was very specific as to fish habitat
05 condition, relating to stream channel condition, riparian
06 vegetation and the erosional condition, classes of the
07 banks, and adjacent floodplains at that specific site of
09 As a result of learning of our necessary involvement in
10 this proceeding concerning waterfowl habitat restoration as
11 it concerns Wilson Creek, myself and two other specialists
12 in my office proceeded to conduct as detailed an inventory
13 of the resources, along with three individual segments of
14 Wilson Creek, as we possibly could, given what we were then
15 led to believe were time constraints concerning testimony
16 before this Board.
17 To date, we have completed and a very extensive
18 botanical survey of each of the three segments. I have also
19 measured stream flow discharge measurements, if you will, at
20 various locations along those three segments of stream. We
21 have also conducted a standard stream cross-sectional
22 investigation at various locations within the three segments
23 to numerically identify the condition of the stream as to
24 its stream bank integrity, channel condition, and riparian
01 The evidence that we have collected to date has been
02 analyzed in varying degrees. The botanical survey has
03 recently been completed by our staff botanist, and the
04 preliminary, and I do not want to emphasize preliminary,
05 report has been completed. We are ongoing with our efforts
06 at analyzing additional information that was recently
07 provided to us by Southern California Edison as to the
08 annual hydrograph from the Lundy Powerhouse. We have some
09 additional requests to make of the Los Angeles Department of
10 Water and Power concerning information they might have on
11 the diversion of water at various times into the Lower
12 Conway and Upper Conway Ditches and any other pertinent
13 information that we can possibly find that might help us
14 understand that system as best we can.
15 I think I would like to also indicate to everyone
16 present today that, within the scope of testimony that we
17 have already provided, and this is for the information of
18 everyone, to assist them as best we can with other things,
19 other efforts that we have already completed, or that are
20 ongoing concerning the public land along Wilson Creek, I
21 would like for the audience to know that the botanical
22 survey was very specific in that we used a geographical
23 positioning system device to actually delineate the
24 boundaries of riparian vegetation in all segments of the
25 stream, and that we have also identified individual
01 community types within the three segments as to their
02 compositional status and to their area or, if you will, the
03 acreage extent of each of those communities.
04 The BLM Bishop Resource Area, by luck, in 1988 was one
05 of the first resource areas in BLM to receive a complete
06 geographic information computer system by which to inventory
07 all land and document all data then available, which we have
08 added to extensively since that time. Our capability under
09 GIS is, at this time point, quite extensive, and our
10 information base is very comprehensive for the Mono
11 Basin. I also need to remind the Board and others here that
12 the BLM used to be the land manager for what is now the
13 Mono Basin Scenic Area. That land was transferred to the
14 Forest Service on or about 1987, as I recall. I could be
15 missing it by a year there or so.
16 Our historic inventory data of varying kinds includes
17 the Mono Basin Scenic area, including Mill Creek and other
18 areas that have been discussed in testimony before this
19 Board. We are quite willing to offer that data to anybody
20 that wishes it.
21 I have also noticed, and within the scope of testimony
22 that we have provided to the Board, concerning the grazing,
23 which certainly falls within the botanical component of
24 Wilson Creek. The BLM currently provides for a single
25 grazing allotment that occurs along the, what I am going to
01 refer to now as, segment one, which extends from Highway 167
02 upstream, if you will, to the boundary of Conway Ranch
03 property. Our permit within the Rancherita Gulch north area
04 allows for the periodic watering of sheep on the creek, but
05 we do permit the sheep grazer to spend any time there to
07 As a result, we find that the conditions of riparian
08 vegetation quantity and quality on that segment of stream
09 replicates in great detail what we also have on the other
10 segments upstream of the Conway Ranch.
11 We are also, at this time, endeavoring through other
12 scientists at the National Applied Resource Science Center
13 -- it is a hard one for me -- in Denver, used to be called
14 the Denver Service Center of the BLM, we are endeavoring
15 through the assistance of physical scientists at that
16 location to undertake a much more complex evaluation of the
17 data I have collected on Wilson Creek as to stream
18 discharge, stream flow if you will, and the adjacent
19 floodplain and the resulting effects of stream flow on the
20 amount and type of riparian vegetation.
21 That concludes my testimony.
22 CHAIRMAN CAFFREY: Thank you, Mr. Russi.
23 CHAIRMAN CAFFREY: Cross-examination, Mr. Birmingham.
24 MR. BIRMINGHAM: Thank you.
25 MR. FRINK: I wonder if we would quickly identify for
01 the record Mr. Russi's written statement as BLM Exhibit 3.
02 MR. RUSSI: Thank you.
05 BY LOS ANGELES DEPARTMENT OF WATER AND POWER
06 BY MR. BIRMINGHAM
07 MR. BIRMINGHAM: Good afternoon, Mr. Russi. I am Tom
08 Birmingham. I am the attorney for the Department of Water
09 and Power of the City of Los Angeles. I have just a few
10 questions for you.
11 The Bureau of Land Management has protested the water
12 rights application filed by the Department of Water and
14 MR. RUSSI: That is correct.
15 MR. BIRMINGHAM: The basis of the protest is the
16 potential environmental effects resulting from the
17 appropriation of water from Wilson Creek?
18 MR. RUSSI: That's correct.
19 MR. BIRMINGHAM: Your testimony, BLM Exhibit 3 on Page
20 3, states the following:
21 In addition, LADWP finds that entire
22 dewatering Wilson Creek Delta "seems unwise"
23 given the uncertain time span reestablishing
24 new habitat on Mill Creek and that the
25 rewatering process, as described beginning at
01 Page 11 of the Plan, may naturally develop
02 waterfowl habitat with a concurrent rise in
03 water table. We agree with these statements.
05 Is it the position of the Bureau of Land Management
06 that it opposes the dewatering of Wilson Creek?
07 MR. RUSSI: We do oppose the total dewatering of Wilson
08 Creek, yes.
09 MR. BIRMINGHAM: And is the basis of that opposition
10 the value which the Bureau of Land Management places on the
11 habitat of Wilson Creek?
12 MR. RUSSI: That is correct.
13 MR. BIRMINGHAM: I have no further questions.
14 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
15 Mr. Gipsman.
16 He apparently left.
17 Ms. Bellomo.
20 BY PEOPLE FOR MONO BASIN PRESERVATION
21 BY MS. BELLOMO
22 MS. BELLOMO: Good afternoon, Mr. Russi.
23 MR. RUSSI: Good afternoon.
24 MS. BELLOMO: Mr. Birmingham asked one of the questions
25 that I was going to ask, and you just answered that the
01 basis for opposing the total dewatering was the value placed
02 on Wilson Creek.
03 Is another basis for that opposition the concern over
04 how long it might take for habitat to become established on
05 Mill Creek?
06 MR. RUSSI: That's correct.
07 MS. BELLOMO: Just so I understand you correctly, does
08 BLM own land that is above highway 167 on Wilson Creek, but
09 not below?
10 MR. RUSSI: That's correct.
11 MS. BELLOMO: So with regard to the study that you
12 conducted, your office conducted of Wilson Creek, did you do
13 any study of Wilson Creek below 167?
14 MR. RUSSI: Not currently. As I mentioned, there was a
15 study done initially in 1978.
16 MS. BELLOMO: Do your opinions regarding Wilson Creek
17 in your written testimony, then, pertain exclusively to, the
18 written testimony, to exclusively to the portion of Wilson
19 Creek that is above Highway 167?
20 MR. RUSSI: That's correct.
21 MS. BELLOMO: Do you have an opinion regarding the
22 value of Wilson Creek between 167 and Mono Lake, in other
23 words, below the BLM land?
24 MR. RUSSI: I do.
25 MS. BELLOMO: Can you tell us what that opinion is?
01 MR. RUSSI: In very general terms, Wilson Creek
02 downstream of Highway 167 does not exhibit the riparian and
03 aquatic attributes that you see above Highway 167. They are
04 less so.
05 MS. BELLOMO: Does it diminish -- do the riparian
06 habitat values diminish as you go from 167 down towards the
07 lake or -- do you follow my question?
08 MR. RUSSI: I do follow it. Yes, they do diminish as
09 you go from Highway 167 down to the lake, and in a
10 diminishing sequence. You will find that the amount and the
11 diversity that I have physically observed myself, without
12 any direct measurements, sequentially decrease as you go
13 down the stream course towards Mono Lake.
14 MS. BELLOMO: Does BLM have any opinion -- restate the
16 I understood you to say that BLM opposes the total
17 dewatering of Wilson Creek?
18 MR. RUSSI: That's correct.
19 MS. BELLOMO: Does BLM have an opinion regarding
20 dewatering Wilson Creek from below 167?
21 MR. RUSSI: At this point in time, we do not. Simply
22 because it is not public land. It is National Forest land.
23 MS. BELLOMO: Is it fair to stay that the fact that you
24 did not study the area below 167 is not an endorsement of
25 either the value or lack of value of that stretch of the
02 MR. RUSSI: That's correct.
03 MS. BELLOMO: From the perspective of -- let me step
04 back one question. I don't really know the right terms to
05 be using. The values you look at, the habitat values or you
06 use the word "biotic values," I am not familiar with that
07 terminology --
08 MR. RUSSI: Those are really interchangeable terms.
09 What we are generally and/or specifically looking at on
10 Wilson Creek, to this point, are various soil vegetation and
11 water characteristics that make up various types of habitat
12 found on the creek.
13 MS. BELLOMO: Can you indicate for the area that you
14 studied above 167 where are the, if one could say this, the
15 best stretches of habitat or most valuable stretches have
16 habitat on Wilson Creek?
17 MR. RUSSI: If I could go to the map, I'll show you.
18 MS. BELLOMO: Let the record reflect that the witness
19 is referring to R-LADWP-65, I believe.
20 MR. RUSSI: As I said, we have inventoried all three
21 segments of Wilson Creek. The one with what appears to be,
22 at this point in time, based on physical observation, and
23 based on measurement, as far as, if you will, the greatest
24 biodiversity of habitat types, occurs in segment right
25 here, just upstream from Conway Ranch. That is not to say
01 that the other two segments do not have equally -- I am
02 sorry, do not have values of a similar type. It just that
03 the concentration of the values that we documented in that
04 reach are quite unusual, based on what we measured in other
05 similar stream types in the Eastern Sierra.
06 MS. BELLOMO: While standing at the map, could you
07 indicate where the other two sites are, approximately, that
08 you studied?
09 MR. RUSSI: Yes. From the diversion point, right
10 here, where Wilson Creek begins from the return ditch, from
11 the powerhouse, to a point just upstream from the Lundy
12 Powerhouse Road, even though the Lundy Powerhouse Road is
13 not on this map, the BLM land extends just a little
14 downstream from Lundy Powerhouse Road.
15 The other reach extended from the very bottom of land
16 ownership or easterly boundary of the Conway Ranch
17 downstream to Highway 167.
18 MS. BELLOMO: Thank you.
19 Are you familiar with Wilson Creek as it passes through
20 the Conway Ranch private property?
21 MR. RUSSI: I am generally familiar with it.
22 MS. BELLOMO: Do you have any opinion regarding the
23 habitat value of that portion of the creek?
24 MR. RUSSI: From what I know of it, it has very similar
25 values in diversity of vegetation types and other biotic
01 components that we measured on that middle segment, or what
02 we call segment two, that I just pointed to you on the map.
03 MS. BELLOMO: As I recall, you considered that to be --
04 I don't know how you characterized this, as high value or --
05 MR. RUSSI: It has a high value in the diversity of
06 habitats that are present and also in the quality of those
08 MS. BELLOMO: What are the characteristics of the
09 quality of habitat?
10 MR. RUSSI: One example, I will just use it for
11 vegetation, is the amount of vigor that you can measure
12 within the various species of vegetation that you find there
13 along on the creek. Vigor is, in the most general terms, is
14 how well that plant grows in a given growing season.
15 MS. BELLOMO: Did you find the plant vigor or
16 vegetation vigor in the three sections that you studied to
17 be something you would consider to be positive?
18 MR. RUSSI: Certainly positive, but they aren't
19 necessarily out of the ordinary for riparian vegetation on
20 streams which are managed properly.
21 MS. BELLOMO: Would it be fair to say, then, that the
22 portions of Wilson Creek that you studied you consider are
23 managed properly?
24 MR. RUSSI: In my opinion, yes, they are, very much
25 so. We have control over the livestock, and there are,
01 essentially, no other impacting uses of a substantive nature
02 occurring on any of those segments.
03 MS. BELLOMO: Are you familiar enough with Wilson Creek
04 as it passes through the Conway Ranch to have an opinion as
05 to whether there is evidence of damage to the creek from
06 livestock grazing there?
07 MR. RUSSI: I have general knowledge. It appears to
08 me, from what I have seen of Wilson Creek on that land in
09 the past, over my 15-year duration in the resource area, is
10 that they tend to manage their livestock use very
11 appropriately, as it concerns riparian vegetation.
12 MS. BELLOMO: Do you know -- what we are talking about
13 is sheep grazing, correct?
14 MR. RUSSI: That's correct.
15 MS. BELLOMO: Do you know if sheep are allowed to water
16 in Wilson Creek, go get water in Wilson Creek?
17 MR. RUSSI: I assume that they water sheep on Wilson
18 Creek on Conway. I don't know that for a fact.
19 MS. BELLOMO: Do you have any opinion regarding the
20 value of the waterfowl habitat at the mouth of Wilson Creek
21 as it exists today?
22 MR. RUSSI: I have only taken one walk down to the
23 mouth of Wilson Creek, and that was with Scott Stine and
24 some others back in September, October of last year, as I
25 recall. And because we haven't had land ownership
01 responsibility around the lake for a number of years, I
02 wasn't familiar with it, other than that one day. I saw
03 various hydrophytic plant species occurring at the mouth of
04 Wilson Creek, which indicated, you know, a wetted soil
05 condition over substantial period of time. As to the
06 complexity or the availability of different habitat types or
07 their actual aerial extent, I can't offer anything like
09 MS. BELLOMO: Do you have any opinion regarding how
10 long it would take, if it were to occur, to establish a
11 similar type of habitat at the mouth of Wilson Creek -- of
12 Mill Creek if that were rewatered and Wilson Creek was
14 MR. RUSSI: Whatever conclusion I might be able to draw
15 would have to stem from knowing what the actual hydrology of
16 the site would be, whether it would be continuous or
17 discontinuous, and what other management measures would be
18 employed to stimulate a similar environment at that point.
19 MS. BELLOMO: Turn to your testimony, Exhibit R-BLM-3,
20 your written testimony, I want to ask you a question about a
21 comment on Page 3.
22 I know somewhere on this page you refer to, I believe
23 it is on this page, that you refer to having observed gains
24 and losses on Wilson Creek during the course of your study?
25 MR. RUSSI: That is correct.
01 MS. BELLOMO: Do you recall where that it is?
02 MR. RUSSI: Actually, I think that was on Page 2, under
03 the Stream Flow paragraph, which is the second paragraph up
04 from the bottom.
05 MS. BELLOMO: Thank you.
06 MR. RUSSI: I don't recall or didn't hear your
08 MS. BELLOMO: I didn't ask it. I was trying to find
09 it. Thanks.
10 Do you have an opinion as to what would account for the
11 gains in Wilson Creek that you observed?
12 MR. RUSSI: As far as the gains in Wilson Creek, to me,
13 obviously, it is coming from groundwater charged into the
14 stream channel, which also may be coupled with the natural
15 inflow of water from springs or a spring, I'm sorry, two
16 springs, which occur to the north and slightly to the west
17 of Lundy Powerhouse, which would be on the northern aspect
18 of Copper Mountain.
19 MS. BELLOMO: You refer to groundwater recharge, I
21 MR. RUSSI: I did.
22 MS. BELLOMO: What would the source of that be, in your
24 MR. RUSSI: Very complex question. I can only guess,
25 and part of it would have to stem from the subsurface flow
01 that is apparently coming from Rancherita Gulch,
02 Rattlesnake Gulch. Also from water that is periodically
03 provided to Conway Ditch, which comes from the Virginia
04 Creek watershed, which is an entirely different watershed in
05 the Mono Basin. Also from water emanating from the two
06 springs that I just mentioned.
07 MS. BELLOMO: In your opinion, is it possible that
08 there is also groundwater recharge occurring from irrigation
09 water that is spread on the Mattly Ranch on the other side
10 of the high water?
11 MR. RUSSI: I would have to assume that is occurring
12 just because the water is placed there and the gradient of
13 land form is in the direction of the Conway Ranch.
14 MS. BELLOMO: Turn to Page 3 of your testimony, the
15 last three lines. It's the final sentence. You state that:
16 We believe it is necessary to recognize
17 that the quality and quantity of biotic
18 resources currently present on Wilson Creek
19 substantially contributes to the overall
20 ecological health and long-term productive
21 potential of natural resources within the
22 Mono Basin system. (Reading.)
23 Can you explain what you mean when you say "contribute
24 to the overall ecological health and long-term productive
01 MR. RUSSI: I will try to do it in as few words as
02 possible. Because of the current general conditions that we
03 find on Wilson Creek aquatically and vegetatively, the
04 habitat diversity along those three segments is
05 substantively diverse and, thus, provides living space, if
06 you will, for various species of wildlife that can occupy
07 those areas.
08 Given the extent of those habitats and their current
09 quality, as a biologist, I find that areas of this type tend
10 to be focal points for, on occasion, substantive numbers of
11 various species of wildlife. That is sort of like providing
12 various baskets, if you will, to put your eggs in. And it
13 is a contributor to the various eggs in the larger basket of
14 Mono Basin.
15 MS. BELLOMO: Would you have any concern that if Wilson
16 Creek were dewatered and the habitat that you describe were
17 lost, that during the time that it would take to create new
18 habitat on Mill Creek, wildlife that uses Wilson Creek
19 could, basically, be short on habitat to inhabit?
20 MR. RUSSI: One can infer that if you take away
21 something, such as a portion or all of a riparian zone, that
22 does eliminate the ability of the species that were
23 utilizing that site to occur at that site.
24 It may also mean, but will be very difficult to
25 document, that you would actually numerically eliminate the
01 species that were occupying those sites, particularly, for
02 those species that are not very mobile. As we all know,
03 birds can fly. However, a shrew or a mole is not able to
04 travel very far from a riparian aquatic zone. So, species of
05 that type, in most instances, be eliminated.
06 MS. BELLOMO: If I recall your testimony correctly, you
07 found significant numbers of shrews and moles in Wilson
08 Creek in some areas?
09 MR. RUSSI: We found a small mouth near the -- based on
10 some cursory physical evidence that we found there to be
11 quite extensive. It was quite mind boggling, actually.
12 MS. BELLOMO: I recall you saying, you may not recall
13 this, maybe you do, I recall you saying on a field trip that
14 I went on at one point that you were participating in, that
15 Wilson Creek was one of the creeks -- what I recall you
16 saying is that Wilson Creek was a creed in your region that
17 you would sometimes go to when you wanted to really study an
18 issue about a healthy creek that was functioning well.
19 Do you recall that statement?
20 MR. RUSSI: I recall saying something like that, yes.
21 What I am referring to is that for the public lands -- I am
22 sure many in the audience will recognize that the manner in
23 which land management occurs on some of the public lands is
24 less than desirable. From my standpoint as a scientist, it
25 is very difficult on most aquatic systems, at least in the
01 areas in which I work in the Eastern Sierra, to find
02 reference sites. Reference sites are things that you can go
03 to, whether you are looking at aquatic or upland systems,
04 and find conditions occurring which, based on technical peer
05 review literature, are expressed in their complexity,
06 diversity, and quality of that site.
07 So that is what I was technically referring to when I
08 mentioned that to you and other people. It was very nice
09 for me to be able to see Wilson Creek in its current
10 condition and to recognize that I had something to measure
11 it against if I desired to do that, assume I could find a
12 similar soil/vegetation community in other parts of the
13 resource area that I work in.
14 MS. BELLOMO: Turning to Page 4 of your testimony, you
15 indicate that, at the top of the page:
16 In order for an informed debate to occur on
17 the wise stewardship of the Mill/Wilson Creek
18 resources, we regard a collection of
19 additional hydrologic information,
20 particularly of Mill Creek, as a fundamental
21 starting point. (Reading.)
22 My question is: What type of information are you
23 referring to as being needed?
24 MR. RUSSI: The most fundamental one that I can
25 imagine that I am not aware is available in the extent that
01 I would like to see it, would be a definition of the, if you
02 will, gaining and losing reaches of Mill Creek within the
03 area of discussion, as far as the Waterfowl Restoration Plan
04 is concerned.
05 MS. BELLOMO: You lost me there, so I have to ask what
06 do you mean by "gaining and losing reaches"? What is the
07 significance of that?
08 MR. RUSSI: Gaining and losing reaches are portions of
09 the stream channels which either lose water as a result
10 water infiltrating into the subsurface, or there is an
11 increase or an addition of water to the stream channel as a
12 result of a high water table or a spring environment that is
13 immediately adjacent to the channel itself, or something of
14 that type.
15 MS. BELLOMO: Why would it be significant or important
16 to have this information in order to have an informed
18 MR. RUSSI: If one wants to stick X amount of water in
19 Mill Creek at the expense of potentially of removing water
20 from another stream system, it seems prudent to me to
21 understand how efficiently a stream channel uses water,
22 either gaining or losing.
23 MS. BELLOMO: Again at Page 4 in the conclusion section
24 at point two, you state -- I think this is a list of
25 measures that you consider to be essential; is that correct?
01 MR. RUSSI: These are thoughts or points that BLM is
02 offering as a starting point, as far as additional
03 information or a general model about how to go about
04 understanding the Mill Creek and Wilson Creek areas.
05 MS. BELLOMO: Thank you for that clarification. At
06 point two you state:
07 Conduct the necessary work to understand the
08 surface water hydrology of Mill Creek.
10 Is that something different than what you just
12 MR. RUSSI: No, it is not.
13 MS. BELLOMO: Do you have any concerns about whether
14 Mill Creek can, in fact, support the kind of vegetation that
15 Dr. Stine and the other State Lands Commission's witnesses
16 predict will occur on Mill Creek if it is rewatered?
17 MR. BIRMINGHAM: Objection. There is no evidence that
18 he's read the testimony of State Lands Commission's
20 MS. BELLOMO: That is a good point.
21 CHAIRMAN CAFFREY: Sustained.
22 Ms. Bellomo sustains your objection, Mr. Birmingham.
23 MR. DODGE: Now I know it is too late in the day.
24 MS. BELLOMO: Mr. Russi, have you reviewed the
25 testimony of Dr. Scott Stine that has been submitted in this
01 case on behalf State Lands Commission?
02 MR. RUSSI: Yes, I have.
03 MS. BELLOMO: Did you review the testimony of the other
04 witnesses that -- I am not sure who is State Lands
05 Commission and who is State Parks and Recreation witness.
06 MR. RUSSI: I read all the testimony of State Lands and
08 MS. BELLOMO: My question is, having reviewed that
09 testimony, do you have any concern about whether Mill Creek,
10 if it is rewatered, can, in fact, support the kind of
11 vegetation that Dr. Stine and the other -- those three other
12 witnesses predict would grow on Mill Creek?
13 MR. RUSSI: I have questions in my mind concerning the
14 general descriptions that were given by Dr. Stine and others
15 as to the immediate potential, if you will, is what I am
16 referring from their testimony, for the recovery of
17 vegetation along Mill Creek where we now see little or no
18 actual expression of true riparian vegetation, given the
19 cottonwoods. There is some large club willows that are
20 there. The soil type along portions of Mill Creek,
21 primarily from what I have observed in the area downstream
22 from Mono City, would be difficult to provide a soil
23 environment or soil matrix for rate establishment of
24 riparian vegetation.
25 MS. BELLOMO: Would you expect that over sufficient
01 time or over time that soil might build up along Mill Creek
02 as water flowed down it?
03 MR. RUSSI: I think that is distinctly possible.
04 MS. BELLOMO: What would the source of that be?
05 MR. RUSSI: I am not sufficiently familiar with all the
06 soil conditions on Mill Creek, and I am just going to refer
07 to Lundy Dam down to Highway 395. I am not well schooled
08 there. My only immediate reaction to your question, is that
09 certainly there will be some transport of sand and other
10 similar granular material over slide slopes over time, but
11 the rate and volume at which that occurs, I couldn't really
12 predict at this time.
13 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me for
14 interrupting you. I fear we are getting into that, or maybe
15 even beyond that, gray area of quite a bit of detail that
16 might be more appropriate in the succeeding proceedings.
17 Also, while I am interrupting you, let me just say my
18 schedule is such, as I announced yesterday, that I can't
19 stay this evening nor can Mr. Brown.
20 So I don't know what this witness' plans are on
21 returning on the -- are you two planning to return, Mr.
23 MR. RUSSI: I don't know that I can return on the 18th,
24 but I will be here on the 24th, 25th, and 26, whatever those
25 dates were.
01 CHAIRMAN CAFFREY: I don't know whether we are going to
02 get a chance to finish cross-examination, let alone get into
03 anything else with you today. I am glad you do plan to come
04 back at some point. We will have to factor that in, too. I
05 also wanted to let you know what, in terms of your schedule,
06 we've probably got another 20 to 25 minutes left before we
07 have to wind up today.
08 So, actually, you have about 30 minutes left, if you
09 plan to take it all. So, that would probably just, if that
10 is what your plan is, that is probably what we would
11 conclude with today.
12 Do you think you are going to take all that time?
13 MS. BELLOMO: Actually, I only have a few more
14 questions. I prepared my questions before we got into the
15 earlier discussion, and I forgot, really, to take that, you
16 know, suggestion into account. But let me just ask one more
17 question, and if this is too detailed, let me know. I don't
18 really know.
19 CHAIRMAN CAFFREY: Go ahead.
20 MS. BELLOMO: Do you have an opinion regarding the
21 channel mobility at Mill Creek and if it is likely to change
22 its course significantly with high flows?
23 MR. RUSSI: Assuming for the sake of discussion that
24 high flows are somewhere on the order of over 100 cfs, I
25 would expect certain areas of Mill Creek downstream of
01 Highway 395, to change channel location substantially over
02 time until there is sufficient bank holding vegetation and
03 root masses to establish an actual intact channel system.
04 MS. BELLOMO: Just to clarify, what area are you
05 talking about, referring to?
06 MR. RUSSI: I am speaking, generally, about that
07 portion of the stream channel that is basically over the --
08 down over the hill from Mono City, down, I am going to say,
09 to some indefinite point below the County Road.
10 MS. BELLOMO: Thank you. I have no further questions.
11 If I could just ask something before you get to the
12 next person.
13 CHAIRMAN CAFFREY: Sure.
14 MS. BELLOMO: We'll be back for the next three days,
15 the People for Mono Basin Preservation. And I know that
16 there are some people over there that, if they were able to,
17 had hoped to come and hear our testimony. They may have
18 another shot at doing that. During the break, I was talking
19 with Mr. Vorster and a few of the other witnesses and
20 getting a sense that maybe, although we would be the next
21 witnesses in order after Mr. Russi, maybe there was a
22 possibility that we wouldn't be the first people on that
24 I'm just wondering, before we conclude today, if we can
25 get an idea if, in fact, someone is going to ask to jump
01 ahead of us so we can tell any of our citizens who might
02 have a chance to cone over here, to be here.
03 CHAIRMAN CAFFREY: Mr. Frink, I am not sure I've got
04 full track of the adjustments we made for the 18th date.
05 But it seems to me that is probably something we can be
06 getting to early in the day of the first day of the
07 three-day block.
08 MR. JOHNS: If I may, I think it might be possible.
09 There are a few witnesses on the 24th that might come in
10 that do have a conflict on the 25th. And maybe we can have
11 them address the Board. I know that Mr. Vorster expressed
12 concern about his availability on the 25th.
13 MR. VORSTER: Dr. Stine is in the same boat.
14 MR. JOHNS: What we might have, perhaps, if he can
15 think about having Fish and Game bringing their fisheries
16 people forward on the 24th and put the waterfowl people off
17 to another time. We might be able to fill the 24th with
18 fishery related issues. Again, if that is a possibility.
19 CHAIRMAN CAFFREY: I am not sure I follow all of that.
20 Mr. Roos-Collins.
21 MR. JOHNS: We also have Cal Trout that would be coming
22 on that date, too.
23 CHAIRMAN CAFFREY: Mr. Johns changed his name.
24 MR. JOHNS: Excuse me.
25 CHAIRMAN CAFFREY: Mr. Roos-Collins, please.
01 MR. ROOS-COLLINS: Mr. Chairman, I suggest that State
02 Water Board staff apply your rule of adjustment through
03 discussion after this hearing closes.
04 CHAIRMAN CAFFREY: That is a good suggestion. I think
05 what you're saying is, kind of let Mr. Frink try to work
06 this all out with the parties. We have a lot of adjustments
07 that have to be made to accommodate folks. We will do what
08 we can to accommodate the folks that are coming to hear that
09 portion of the hearing. We shall be presenting --
10 Ms. Bellomo, we will do everything we can. Give you
11 some kind of date or time when you can expect to be on.
12 MS. BELLOMO: Thank you.
13 CHAIRMAN CAFFREY: You might want to call Mr. Frink in
14 the intervening days between now and when we come back to
15 find out what he's come up with.
16 Let me check and see here that -- is there any other --
17 if I go down the list here, maybe some of you can give me an
18 idea of how much time you would like, if any, to
19 cross-examine this witness, and maybe we can just at least
20 tick off some of the folks.
21 I know that Mr. Haselton has come back. He was gone
22 earlier. I take it he is not here now.
23 Mr. Ridenhour is gone, Dr. Ridenhour I should say.
24 Mr. Roos-Collins, do you plan to ask questions of this
01 MR. ROOS-COLLINS: Yes. Five minutes or less.
02 CHAIRMAN CAFFREY: Why don't we get to that right
03 now, then, if that is all right. Trying to get in as much
04 as we can here.
07 BY CALIFORNIA TROUT
08 BY MR. ROOS-COLLINS
09 MR. ROOS-COLLINS: Mr. Chairman, he appears to be a
10 very succinct witnesses. I am confident that I can complete
11 my cross-examination in five minutes.
12 CHAIRMAN CAFFREY: Go ahead.
13 MR. ROOS-COLLINS: Good afternoon, Mr. Russi.
14 MR. RUSSI: Good afternoon.
15 MR. ROOS-COLLINS: You referred to historic survey data
16 for various lands now in the Scenic Area managed by Forest
18 MR. RUSSI: That is correct. It has to do, as I
19 mentioned, with fish habitat inventories on Mill Creek and
20 Wilson Creek.
21 MR. ROOS-COLLINS: Does the Bureau of Land Management
22 have any historic survey data for Rush or Lee Vining?
23 MR. RUSSI: I have been trying to recall that since I
24 came over here. I am going to have to check the file when I
25 go back.
01 MR. ROOS-COLLINS: Mr. Chairman, I would like to pursue
02 this line of questioning upon Mr. Russi's return.
03 CHAIRMAN CAFFREY: That is agreeable if he needs to get
04 additional information. You want to take a break in yours
05 now? You are through, then, until we get to that point?
06 MR. ROOS-COLLINS: I am through.
07 CHAIRMAN CAFFREY: Maybe that is just as -- unless
08 anybody has some burning need, and since he is coming back.
09 MR. RUSSI: Mr. Roos-Collins, that was Lee Vining you
10 said, and Rush, both?
11 MR. ROOS-COLLINS: Yes, please. When you come back, I
12 will ask specifically who undertook the survey, in what
13 year, what the data pertains to, channel form, riparian
14 vegetation, and so forth, and the form the data is available
16 MR. DODGE: Since the request is being made, I would
17 add Mill Creek to that.
18 MR. RUSSI: Mill Creek. If you are talking about Mill
19 Creek, we are all talking about -- I already mentioned, we
20 have an inventory file for that.
21 MS. MURRAY: And you have offered to make that
23 MR. RUSSI: I just said a moment ago that it is
24 available for whoever wants it. If we have it for Lee
25 Vining and Rush Creek, and I can't remember if we do, then
01 you are certainly available to have that also.
02 MR. FRINK: Mr. Chairman.
03 CHAIRMAN CAFFREY: Mr. Frink.
04 MR. FRINK: I have a real concern here. We spent weeks
05 talking about the historical conditions of Lee Vining Creek
06 and Rush Creek in the prior hearing. The parties have been
07 on notice for six or eight months, at least, about this
08 upcoming hearing. I don't believe Mr. Russi discussed his
09 data base or studies that they have done in any detail at
10 all on Lee Vining Creek or Rush Creek. And I think, if the
11 parties had wanted that information, they should have been
12 looking for it before.
13 I've got a real concern we are going to greatly expand
14 the scope of this hearing and greatly lengthen it.
15 CHAIRMAN CAFFREY: You are saying none of this
16 information is in his direct submittal?
17 MR. FRINK: It is not in his direct. Our regulations
18 do not restrict the cross-examination of what is in his
19 direct. In terms of asking him to bring in new studies now
20 that have not been previously submitted and which he didn't
21 discuss, I think, in essence, that is the same as these
22 parties introducing the evidence themselves at this point.
23 And I think if they want it, it should have been submitted
24 originally with their own exhibits. If they want it for
25 their own use, apart from this hearing, that's great.
01 CHAIRMAN CAFFREY: That is an interesting point and a
02 good one. Are you suggesting that they could just ask Mr.
03 Russi outside of this proceeding to provide them with that
05 MR. FRINK: Yes, I am.
06 CHAIRMAN CAFFREY: Why don't we do that.
07 Mr. Roos-Collins, do you have a point to make, sir?
08 MR. ROOS-COLLINS: Mr. Chairman, I have no objection to
09 that. I did not intend to examine Mr. Russi as to the
10 substance of the data. I am simply anticipating the
11 implementation of Los Angeles' Monitoring Plan which
12 provides for the use of the historical data. I would like
13 this record to include some description of the historical
14 data available from the Bureau of Land Management.
15 MR. FRINK: I think we can get that information as part
16 of the monitoring plan.
17 CHAIRMAN CAFFREY: Get that information as part of the
18 monitoring plan.
19 Ms. Scoonover.
20 MS. SCOONOVER: Mr. Caffrey, I would ask, however, that
21 Mr. Russi make available the preliminary reports to which he
22 referred in his direct testimony and at conclusions of which
23 are the direct testimony. But we have not yet had an
24 opportunity to examine the underlying data. That I believe
25 is relevant and is subject to cross-examination, or should
02 CHAIRMAN CAFFREY: Does this get down to the
03 technicality of whether or not this is going to be an
04 exhibit, Mr. Frink; is that the point?
05 MR. FRINK: Certainly, they can request it of Mr. Russi
06 under the Freedom of Information Act. I presume he will
07 supply it.
08 I do have a concern about introducing numerous new
09 exhibits now. I guess we will have to see how it goes.
10 CHAIRMAN CAFFREY: Is this a solution, then, have Mr.
11 Russi share with the parties who have requests the
12 information outside of this proceeding, and then when they
13 cross-examine him, for instance, along the lines Ms.
14 Scoonover was suggesting, since there is a relationship,
15 that they could then see how far they can go with the
16 questioning, based on the reasonable confines of his
17 testimony, insofar as our regulations allow them to go
18 beyond that?
19 MS. BELLOMO: Mr. Chairman, may I --
20 CHAIRMAN CAFFREY: Next witness.
21 Let's just wait for an answer. I don't know if he
22 heard my question. I don't know how to repeat it again.
23 MR. FRINK: I am sorry, Mr. Chairman, I was getting
24 lots of --
25 CHAIRMAN CAFFREY: What I was asking was, is your
01 suggested ruling that, as I stated earlier, have Mr. Russi
02 provide the information outside of this proceeding to these
03 individuals, under the Freedom of Information Act, to cite
04 what you said, and then, to the extent that that information
05 relates to his original testimony and to the extent it is
06 allowed within our regulations that do allow us to go
07 somewhat beyond his testimony, that they can raise questions
08 at that time when they get to their cross-examination, and
09 then we can see if there are any objections in terms of the
10 parameters of how far they want to go.
11 MR. FRINK: Yes. I believe that is a good approach. I
12 simply urge everyone not to try to greatly expand the
13 record, to rehash ground that we went over in great detail
14 three years ago.
15 CHAIRMAN CAFFREY: Ms. Bellomo, you rise?
16 MS. BELLOMO: Yes. My objection is that I believe that
17 Mr. Russi should be required, as he would under the Freedom
18 of Information Act, to give the materials to the parties
19 that are requesting them, but for them to be able to use
20 those materials in cross-examination represents a tremendous
21 windfall for them, because, if it wasn't a quarter to five,
22 they would have had to get up and do their cross-examination
23 today and that would be that. Because Mr. Russi is getting
24 cut off here, now these parties are going to have an
25 opportunity to do discovery and come back and cross-examine
01 him on that material.
02 If that then becomes a standard and we all do discover
03 in the next two weeks for things that we want to
04 cross-examine people on, you know, backup data and what-not
05 for the next hearing, it just seems like a windfall.
06 CHAIRMAN CAFFREY: Here is my reaction to that, and I
07 will ask Mr. Frink to, shall we say, correct me or at least
08 give me his advice.
09 There is nothing that precludes or disallows the
10 parties, that I know of, from talking to Mr. Russi and
11 getting information that is public information from
12 him. And then if they want to come back and cross-examine
13 him, which they have not had an opportunity to do as yet, if
14 they want to come back and cross-examine him on the basis of
15 his already submitted direct testimony, and within our
16 regulations, are able to relate that information and if
17 there is no objection, I believe that is outside of the
18 authority of probably this Board or this Hearing Officer to
20 Is that fair, Mr. Frink?
21 MR. FRINK: I believe that is an accurate statement,
22 Mr. Chairman. I simply urge everyone to remember the
23 remarks you made at beginning of the proceeding about the
24 relationship between the Board's consideration of the Mill
25 Creek rewatering proposal as part of this proceeding, and
01 further consideration that the Board would have to make of
02 the water right application or, in the event of their change
03 petition, all of this is going to have to be in the future
04 before it can go ahead.
05 I urge everyone not to try and greatly change the
06 direction of this hearing now, particularly going back to
07 the other reason.
08 CHAIRMAN CAFFREY: I think that is important. We opted
09 at the beginning to allow, again I am use the word,
10 "conceptual" discussion, testimony, cross-examination on
11 that subject, or on this subject, as an alternative to just
12 not allowing a discussion on it at all because it relates
14 So, we would hope that you would stay in that spirit
15 and not turn this into a detailed proceeding for something
16 that we are going to have to create a separate record on
17 anyway with all that detail.
18 So, appreciate your zeal, appreciate your good
19 will, and we will try to manage our way through this as we
20 go along.
21 The hour of a quarter to five having arrived, this is
22 probably as good a time as any.
23 Is there anything else, Mr. Frink?
24 MR. FRINK: I don't believe so.
25 CHAIRMAN CAFFREY: We will see you all back here on
01 Tuesday, the 18th, at 9:00 a.m. in this room.
02 Thank you all very much.
03 (Hearing adjourned at 4:50 p.m.)
01 REPORTER'S CERTIFICATE
04 STATE OF CALIFORNIA )
04 ) ss.
05 COUNTY OF SACRAMENTO )
08 I, ESTHER F. WIATRE, certify that I was the
09 official Court Reporter for the proceedings named herein,
10 and that as such reporter, I reported in verbatim shorthand
11 writing those proceedings;
12 That I thereafter caused my shorthand writing to be
13 reduced to typewriting, and the pages numbered 612 through
14 841 herein constitute a complete, true and correct record of
15 the proceedings.
17 IN WITNESS WHEREOF, I have subscribed this
18 certificate at Sacramento, California, on this
19 9th day of February 1997.
24 ESTHER F. WIATRE
25 CSR NO. 1564