Feb. 24, 1997 Restoration Hearing

1110

01 STATE WATER RESOURCES CONTROL BOARD

03 PUBLIC HEARING

06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631

13 HELD AT:

14 STATE WATER RESOURCES CONTROL BOARD

14 PAUL BONDERSON BUILDING

15 901 P STREET, FIRST FLOOR HEARING ROOM

15 SACRAMENTO, CALIFORNIA

18 MONDAY, FEBRUARY 24, 1997

18 9:00 A.M.

24 Reported by: ESTHER F. WIATRE

25 CSR NO. 1564

1111

01 APPEARANCES

01 BOARD MEMBERS:

02 JOHN CAFFREY, CHAIRMAN

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

03 MARY JANE FORSTER

04 STAFF MEMBERS:

05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

07 COUNSEL:

08 DAN FRINK

09 LOS ANGELES DEPARTMENT OF WATER AND POWER:

10 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

10 400 Capitol Mall, 27th Floor

11 Sacramento, California 95814

11 BY: THOMAS W. BIRMINGHAM, ESQ.

12 and

12 JANET GOLDSMITH, ESQ.

13 BUREAU OF LAND MANAGEMENT:

14 UNITED STATES DEPARTMENT OF THE INTERIOR

15 BUREAU OF LAND MANAGEMENT

15 BISHOP RESOURCE AREA

16 785 North Main Street, Suite E

16 Bishop, California 93514

17 BY: TERRY L. RUSSI

18 PEOPLE FOR MONO BASIN PRESERVATION:

19 KATHLEEN MALONEY BELLOMO

19 P.O. Box 201

20 Lee Vining, California 93541

21 ARCULARIUS RANCH:

22 FRANK HASELTON, LSA

22 1 Park Plaza, Suite 500

23 Irvine, California 92610

1112

01 APPEARANCES

02 CALIFORNIA TROUT, INC.:

03 NATURAL HERITAGE INSTITUTE

03 114 Sansome Street, Suite 1200

04 San Francisco, California 94014

04 BY: RICHARD ROOS-COLLINS, ESQ.

05 CALIFORNIA DEPARTMENT OF FISH AND GAME:

06 NANCEE MURRAY, ESQ.

07 1416 Ninth Street

07 Sacramento, California 95814

08 McDONOUGH HOLLAND & ALLEN

09 555 Capitol Mall, Ninth Floor

09 Sacramento, California 95814

10 BY: VIRGINIA A. CAHILL, ESQ.

11 CALIFORNIA STATE LANDS COMMISSION:

11 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

12 MARY J. SCOONOVER, ESQ.

13 1300 I Street

13 Sacramento, California 95814

14 MICHAEL VALENTINE

15 NATIONAL AUDUBON SOCIETY:

16 MONO LAKE COMMITTEE:

17 MORRISON & FORSTER

17 425 Market Street

18 San Francisco, California

18 BY: F. BRUCE DODGE, ESQ.

19 PANEL MEMBERS:

20 PETER VORSTER

21 LARRY L. HARRISON

21 SCOTT STINE

23 ---oOo---

1113

01 INDEX

02 PAGE

03 NATIONAL AUDUBON SOCIETY/MONO LAKE COMMITTEE

04 DIRECT EXAMINATION

05 BY MR. DODGE 1117

06 CROSS-EXAMINATION

07 BY MR. RUSSI 1155

07 BY MS. BELLOMO 1169

08 BY MR. HASELTON 1219

08 BY MS. ROOS-COLLINS 1221

09 BY MS. CAHILL 1234

10 ---oOo---

11 AFTERNOON SESSION 1219

1114

01 SACRAMENTO, CALIFORNIA

02 FEBRUARY 24, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning and welcome back to all

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

06 Stubchaer and Ms. Forster.

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

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

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

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

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

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

13 more things out.

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

15 is now with regard to conveniencing the parties on their

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

17 schedule for today.

18 Mr. Frink.

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

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

21 this morning.

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

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

24 group here?

25 MR. DODGE: Yes, you do.

1115

01 CHAIRMAN CAFFREY: There had been some discussion

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

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

04 witnesses together?

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

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

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

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

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

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

11 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

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

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

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

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

16 the list.

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

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

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

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

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

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

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

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

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

1116

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

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

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

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

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

06 sure everybody would appreciate that.

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

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

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

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

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

12 always rebuttal to follow.

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

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

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

16 direct testimony is your opportunity to just summarize and

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

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

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

20 continue.

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

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

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

24 today?

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

1117

01 (Oath administered by Chairman Caffrey.)

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

03 Mr. Dodge, sir.

04 ---oOo---

05 DIRECT EXAMINATION BY

06 NATIONAL AUDUBON SOCIETY/MONO LAKE COMMITTEE

07 BY MR. DODGE

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

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

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

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

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

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

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

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

16 Vorster.

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

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

19 is Peter Vorster. I was extensively involved in the

20 preparation plan through the TAGs, the ad hoc flow

21 subcommittee, and the submittal of extensive written

22 comments. I appreciate that DWP, in particular Bill

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

24 Kavounas, conducted a process in an open and cooperative

25 manner.

1118

01 There are a couple of minor corrections in my

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

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

04 which should have been part of Attachment 5, was

05 inadvertently left out.

06 My testimony will cover the following subject matters.

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

08 hydrology and water management, water requirements for

09 Thompson and Conway Meadows, a comparison of the different

10 channel maintenance flow recommendations, the adequacy of

11 DWP channel maintenance flow recommendations, and the export

12 impact of the recommended flow regimes.

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

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

15 Water Rights Decree for Mill Creek and subsequent

16 conveyances and compilations of the decree by the

17 Department of Water and Power and Southern California

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

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

20 with minor corrections noted in my written testimony. This

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

22 Frank, in the DWP's Waterfowl Plan.

23 The water rights to Mill Creek are held by four

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

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

1119

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

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

03 lands enclosed by this large figure and the Mattly lands

04 over here.

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

06 lands a 4 cfs right.

07 Southern California Edison does not have a water right

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

09 downstream water right holders, although it does have a

10 right to store inflow above 70 cfs.

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

12 Wilson Creek is a conduit for delivering water to irrigation

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

14 was originally referred to as the DeChambeau Ditch.

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

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

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

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

19 Conway Ranch has no major diversions from Wilson Creek on

20 the ranch property itself.

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

22 Diversions to the ranch historically occurred from the

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

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

25 from the south of we call Wilson Creek.

1120

01 Next I want to briefly describe the Mill-Wilson

02 hydrology and water management. I compiled a series of

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

04 are just enlargements of the attachments. These

05 spreadsheets provide a snapshot of the historic actual flows

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

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

08 the Mono Lake Committee's proposal for providing instream

09 flows in Mill Creek is implemented.

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

11 rights and the dedication of other unappropriative water

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

13 accomplish the rewatering of Mill Creek.

14 The Mono Lake Committee proposal is to restore close to

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

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

17 Creek to the level recommended by the waterfowl restoration

18 scientists, and to restore a naturally functioning stream,

19 ecosystem, and bottomlands.

20 Mono Lake Committee proposes to return all of the water

21 to Mill Creek except that which is necessary to maintain

22 Wilson Creek riparian quarter through the Conway Ranch and

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

24 Mono Lake Committee proposes to accomplish this through the

25 purchase and dedication of the Conway Ranch water rights,

1121

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

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

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

04 peak.

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

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

07 wet runoff year at the available measuring sites for key

08 points of demarcation in the Mill-Wilson system.

09 The meaning and derivation of every line in the

10 spreadsheets is explained in Attachment 5. Behind me is

11 actually a summary spreadsheet. The detailed spreadsheets

12 are contained in my testimony.

13 The spreadsheets allow the user to specify certain

14 variables in order to model alternative water management

15 scenarios, including the capacity of the Mill Creek Return

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

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

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

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

20 riparian quarter through the Conway Ranch. These are all

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

22 order to model different scenarios.

23 CHAIRMAN CAFFREY: Excuse me, Mr. Vorster.

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

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

1122

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

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

03 and that's perfectly all right.

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

05 draw a little bit closer, please feel free.

06 Excuse me, Mr. Vorster. Go ahead.

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

08 testimony I provided three scenarios, and they are

09 differentiated by the assumed capacity of the return ditch

10 and the irrigation water for Thompson Ranch. Since my

11 testimony was prepared, we received the testimony from

12 Southern California Edison, which indicated that they

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

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

15 testimony.

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

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

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

19 summary spreadsheet is actually up behind Scenario 1.

20 MR. BIRMINGHAM: Mr. Caffrey.

21 CHAIRMAN CAFFREY: Mr. Birmingham.

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

23 introduction of Scenario 4 inasmuch as it was not submitted

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

25 CHAIRMAN CAFFREY: Is there anybody wishing to offer a

1123

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

02 concern?

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

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

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

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

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

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

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

10 rebuttal, if you wish.

11 CHAIRMAN CAFFREY: Ms. Bellomo.

12 MS. BELLOMO: Just ask for clarification, Chairman

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

14 having provided testimony in this proceeding. I think we

15 should be referenced to the documents that is supposedly

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

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

18 aware of.

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

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

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

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

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

24 say.

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

1124

01 in direct from Southern California Edison?

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

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

04 regarding the capacity of the ditch.

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

06 formally asked for that information until shortly before the

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

08 request to subpoena the information from SCE.

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

10 happened was Mr. Dodge made an inquiry of Southern

11 California Edison so that he could submit evidence

12 concerning the capacity of the return ditch in connection

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

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

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

16 prejudiced because of their failure to get the information

17 earlier.

18 What happened was Mr. Dodge got the information from

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

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

21 information, Mr. Vorster apparently has conducted a

22 different analysis, which should have been presented with

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

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

25 a moment ago.

1125

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

02 facts.

03 CHAIRMAN CAFFREY: Go ahead.

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

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

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

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

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

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

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

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

12 information from Southern California Edison. And so,

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

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

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

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

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

18 Board's previous rulings concerning the submission of

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

20 excluded.

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

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

23 Nothing else, Mr. Dodge?

24 MR. DODGE: Nothing.

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

1126

01 something you wanted to add?

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

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

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

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

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

07 -- Ms. Scoonover, briefly.

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

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

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

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

12 is or is not.

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

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

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

16 in the record, I would assume.

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

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

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

20 know --

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

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

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

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

25 Please proceed.

1127

01 MR. VORSTER: Thank you.

02 The following observations about historic flows and

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

04 the amount and seasonality of historic flows and diversions

05 shown in spreadsheets are consistent with the recent

06 measurements and observations, even though they show 1950,

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

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

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

10 operations are consistent with what is shown in the

11 spreadsheets.

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

13 the upper Thompson diversions for the irrigation of lands

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

15 substantially less and have been entirely eliminated in the

16 past few years.

17 Secondly, the differences in the Mill Creek unimpaired

18 runoff between the different year types is most pronounced

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

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

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

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

23 in the flows in November.

24 Thirdly, Mill Creek gains an estimated average monthly

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

1128

01 combination of factors. Lundy Reservoir would be off the

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

03 approximately Highway 395. It gains flow from tributary

04 inflow and groundwater accretion. Below Highway 395 down

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

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

07 springs would reemerge.

08 I assume, consistent with available but limited number

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

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

11 losses probably have been slightly less than the gains.

12 I would note that if water is flowing consistently in

13 the multiple channels in the revegetated Mill Creek

14 bottomlands, the losses will increase in the future over

15 what I have shown in the spreadsheets.

16 Fourth, the diversion in the Thompson Ditches and

17 Conway and Mattly Ditches occurred on seasonal bases for

18 irrigation purposes. Thus, normally there were no

19 diversions between November and March, and in many years

20 there were no diversions between October and April.

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

22 that are not diverted from the Conway and Mattly Ranch

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

24 through the Conway Ranch in most occasions. A combination

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

1129

01 periodically dry up downstream from the Conway Ranch.

02 So most of the time there is year-round flow from the

03 power plant through the Conway Ranch, but in this section

04 there is a losing stream and in the drier months, especially

05 dryer years, this is often totally dry of surface flow.

06 An exception to the normal year-round flow in Wilson

07 Creek occurred during the period 1962 to '68 when the

08 Lundy Power Plant was not in service, which meant

09 irrigation water for the Conway, Mattly, and DeChambeau

10 Ranches had to be diverted from Mill Creek, directly from

11 Mill Creek. More water was diverted from Mill Creek in the

12 late fall and winter from 1962 to '68. So Wilson Creek did

13 not have that supply from the power plant outflow.

14 I assume a small amount of accretion occurs in the

15 reach of Wilson Creek through Conway Ranch, but for most of

16 its length it stayed dry if there was no water being

17 discharged from the power plant.

18 The following observations can be made about the

19 expected flows in the Mill-Wilson system if Los Angeles

20 Department of Water and Power or Mono Lake Committee's

21 proposals are implemented. First, without the successful

22 appropriation of the October through April water from the

23 Wilson system, DWP's proposal to dedicate its existing water

24 rights result in little or no flow in Mill Creek below the

25 County Road in the late summer, fall, and winter.

1130

01 The County Road, again, being down near Mono Lake. So,

02 in this reach here, from the bottomlands down to Mono Lake,

03 that reach would be dry under DWP's proposal just dedicating

04 its irrigation water right.

05 The testimony of Scott Stine elaborates the implication

06 of DWP's proposals for flows and waterfowl habitat in Mill

07 Creek. Even if DWP is successful with the appropriation of

08 the unused water in the October through April period, the

09 flows in Mill Creek below the County Road are very, very low

10 in September, from 4 percent to 44 percent of the impaired

11 flow at Lundy Reservoir. September is a key month for

12 migratory waterfowl in the Mono Basin, according to the

13 testimony of Fritz Reid.

14 Because of the assumed limited capacity of the return

15 ditch and the Conway diversion right, DWP's proposals result

16 in snow melt season flows that are from one-quarter to

17 one-half of the available Mill Week runoff. Upgrading the

18 ditch, return ditch, allows for greater flows in the snow

19 melt season.

20 Flows, however, will always be considerably less than

21 what is available at the Lundy Reservoir because of the

22 assumed limitation that DWP cannot dedicate more than 38 cfs

23 to Mill Creek. As a result, the flow is insufficient for

24 rewatering of the bottomland channels as Dr. Stine's later

25 testimony will discuss.

1131

01 A restriction in the return ditch capacity to 12 cfs

02 will reduce the flows in Mill Creek with the DWP proposals

03 whenever the available runoff is greater than 12 cfs in the

04 October through April period, or 24 cfs in the May through

05 September period. As can be seen, if you compare Scenario 4

06 with Scenario 1. But I guess at this point Scenario 4 is

07 not -- I won't refer to it. I just would observe that in a

08 normal year this occurs in 7 out of 12 months of the year.

09 Next, I want to talk about the water requirements for

10 the Conway and Thompson Meadows. A very rough estimate of

11 the water requirements for the Conway Ranch and Thompson

12 Ranch Meadows. Again, Conway Ranch. I am referring to this

13 as the Conway Ranch Meadow, both north and south of Wilson

14 Creek. And I am going to draw -- this map did not

15 originally have Thompson Ranch on it, so I am going to draw

16 it in here. This County Road is actually the very old

17 County Road. The current County Road comes in about here,

18 and so, the Thompson Meadow -- I am just going to draw a

19 circle here to roughly represent Thompson.

20 So that rough estimate of the water requirement can be

21 made by multiplying the irrigated acreage times the

22 consumptive use of the meadow grass, which is approximately

23 two feet and by doubling that amount to take in account the

24 relative inefficiency of flood irrigation, you can come up

25 with a rough water requirement. For 350 acres of Conway

1132

01 Ranch, the calculation results in an average growing season

02 requirement of about 4.5 cfs. That requirement can be

03 entirely supplied by the diversions from Virginia Creek,

04 accretion in the drainage used by the Virginia Creek

05 diversion and natural spring flow and accretion on the

06 property, and occasional peak snow melt season supplied from

07 the ephemeral drainages that drain onto the ranch.

08 In other words, no Mill Creek water is needed. In

09 fact, the Conway Ranch Meadow north of Wilson Creek, which

10 represents 85 percent of the total meadow acreage, has not

11 had any Mill Creek water for the last decade, relying

12 entirely on the Virginia Creek diversion and natural sources

13 on the property.

14 A similar calculation for the hundred acres of Thompson

15 Ranch currently irrigated results in an average growing

16 season requirement of about 1.3 cfs, which can be supplied

17 from a combination of Mill Creek, springs and seepage on the

18 edge of the property and runoff from the DeChambeau

19 Creek. I want to emphasize these are both rough estimates

20 of the irrigation water requirements; the actual amount

21 depends on non climatic factors, such as topography and the

22 water delivery system to the meadows.

23 The main point to appreciate is that it takes very

24 little or no water from Mill Creek to maintain viable

25 pasture on the Conway and Thompson Meadows.

1133

01 Next, I want to turn to my stream testimony. And

02 first, I want to compare the channel maintenance flows that

03 have been recommended over the years, and Attachment 10,

04 which is a blowup from my testimony, compares the channel

05 maintenance flows. I would note that DWP's current

06 recommendations are far greater than their 1994

07 recommendations, which were based upon analysis by Dr.

08 Beschta.

09 DWP's current recommendations are still guided by a

10 philosophy as expressed by Dr. Beschta, that providing the

11 impaired flows is sufficient for restoration. That

12 contrasts with a philosophy held by others, including the

13 stream scientists, Dr. Trush and Dr. Ridenhour and Chris

14 Hunter, that indicates that the unimpaired flow should be

15 used as a guide since those are the flows that provide the

16 habitat that we are trying to restore, in which we see

17 evolving today because of high flows in 1995, for example.

18 I do want to emphasize, though, that the stream

19 scientists' recommendations are not the unimpaired flows.

20 They are, in fact, substantially less than the unimpaired

21 flows in Rush Creek, as can be seen in my Attachment 11.

22 On Lee Vining Creek, their recommendations are, by

23 definition, the specified flow or whatever the peak flows at

24 the DWP facility, which is impaired flow. The Southern

25 California Edison reservoirs on Lee Vining Creek do not

1134

01 impair the flows nearly as much as on Rush Creek. So, that

02 is why the steam scientists were comfortable in stating the

03 recommendations in those terms.

04 This then shows the different recommendations in

05 comparing the cfs magnitude recommendations with the

06 unimpaired peak flows in the different years types, as well

07 as the number of days in which flows exceeded the

08 recommendations. The number of days that are recommended

09 are shown in the light characters and the bold are what the

10 unimpaired regime would provide.

11 Next, I want to address the inadequacy of DWP's

12 recommended channel maintenance flows. The DWP flows are

13 inadequate both in wetter and drier years. In wetter years

14 the magnitude that is recommended is less than what would

15 mobilize the bed and inundate the low terraces in nearly

16 every single year. With the DWP flows, this 500 cfs or

17 greater flow requirement, as testified to by Dr. Trush, has

18 the opportunity to occur only about eight percent of the

19 years, or the extreme year category.

20 (Ms. Forster enters.)

21 MR. VORSTER: With unimpaired flows, flows of 500 cfs,

22 occurred in about half of the years. The second issue in

23 wetter years is that a delivery mechanism is highly

24 problematic. The augmentation of Rush from Lee Vining Creek

25 must occur in 40 percent of the years with DWP's flow

1135

01 regime. There are five major problems with it, as

02 experienced in 1996 highlights.

03 First, is questionable reliability. Even if DWP fixes

04 the gates, that makes the conduit overflow, there is still a

05 problem with the Lee Vining diversion facility. It is not

06 responsive to the flow fluctuations that occur upstream of

07 it, and we saw that in 1996 when Southern California Edison

08 had to suddenly reduce their flows by a hundred cfs and

09 DWP's facility did not respond. And thus there was a

10 violation of D-1631.

11 The second issue is that DWP's plan does not establish

12 criteria for determining peak flows and diversions. The

13 criteria that they provided in the May 1966 letter and

14 subsequent conference calls were subsequently violated

15 during the augmentation procedure. The criteria

16 transmitted orally included forecasting and backcasting

17 procedures which may result in the diversion of the actual

18 peak or waiting so long that the flows dropped to D-1631

19 minimums and considerably delayed Rush peaks after the

20 natural flows have peaked.

21 Third, it requires coordination with Southern

22 California Edison, which by the admission of both Southern

23 California Edison and DWP, they could have done a better job

24 of coordinating. And the telemetry system that DWP relies

25 upon for transmitting data about Lee Vining Creek releases

1136

01 and diversions, actually had a breakdown right at the point

02 in time when flows were decreasing on Lee Vining Creek and

03 diversions occurring.

04 Fourth, the delays in Rush Creek peak occur because of

05 the augmentation. And, for example, in 1996 the peak flow

06 in Rush Creek occurred three weeks after the natural peak,

07 as shown in Attachment 8.

08 This line, here on Attachment 8, shows the unimpaired

09 peak occurring in early June and the actual peak occurred

10 three weeks later in late June, as a result of the

11 augmentation.

12 Fifth, it dramatically reduces the backend of the peak

13 hydrograph on Lee Vining Creek because it shaves off 50

14 percent or more of the flow and can cause Lee Vining Creek

15 to be at the D-1631 minimum flow in an extreme year.

16 The augmentation procedure invites controversy and

17 potential problems for the restoration of both Rush and Lee

18 Vining Creek. I maintain that only the repair of all the

19 involved facilities, establishment of written operating

20 criteria, careful monitoring of the creeks and diversions

21 with real time and publicly accessible data, and the

22 establishment and enforcement of penalties for violations,

23 will ensure the proper operation of the augmentation

24 procedure.

25 A permanent outlet from Grant avoids these problems and

1137

01 is the only reliable way to provide the recommended flows in

02 60 percent of the years recommended by the stream

03 scientists.

04 In drier years, there are a number of problems with

05 DWP's recommendations. They do not provide restoration

06 rationale for reducing the recommendations made by the ad

07 hoc flow subcommittee in over half the years. The only

08 rationale they provided is fear of export reduction, which,

09 as we will see, is possibly unfounded.

10 In over half of the years, the magnitude of the DWP

11 flow is less than the peak flows that nature would provide

12 in every single year, and often provides several times a

13 year.

14 With the existing facility, only one peak will occur.

15 In 40 percent of the years with the DWP regime, it is

16 less than the impaired flows, as Dr. Beschta testified, and

17 dramatically less than the unimpaired flows as I show in

18 Attachment 11. In these same 40 percent of the years, the

19 recommended peak will be a hundred cfs or less, which Dr.

20 Trush stated is necessary to attainment -- excuse me. In

21 the same 40 percent of the years, the recommended peak flow

22 will be a hundred cfs or less, while Dr. Trush stated that,

23 to attain the attributes of incipient mobility and bankful

24 flows on average once a year, the flows should be in the

25 range of 350 to over 400 cfs.

1138

01 MR. BIRMINGHAM: Excuse me, Mr. Caffrey.

02 CHAIRMAN CAFFREY: Mr. Birmingham.

03 MR. BIRMINGHAM: I wonder if Mr. Vorster could be

04 asked to restrict his commentary to the written testimony

05 that was submitted, as opposed to the testimony that the

06 Board has heard since the beginning of the hearing.

07 CHAIRMAN CAFFREY: Yes. You make a good point. The

08 direct should be honed to -- the oral testimony should be

09 honed to what you submitted in written fashion, Mr.

10 Vorster. Going beyond that is something that is reserved

11 for cross-examination, if you will.

12 MR. BIRMINGHAM: Well, in fact, sir, I think what he is

13 trying to do is rebut the testimony that has been submitted

14 by other witnesses during the oral presentation and their

15 cross-examination, and it is our perspective that that ought

16 to be reserved for rebuttal.

17 CHAIRMAN CAFFREY: Mr. Vorster, please try to stay on

18 your --

19 MR. VORSTER: I will.

20 CHAIRMAN CAFFREY: -- actual, direct that you have

21 submitted. Your attorneys can get to the meat of some of

22 the other things through their techniques at a later time.

23 MR. VORSTER: I will not refer to Dr. Trush or Dr.

24 Beschta anymore in my direct testimony.

25 Lastly, I want to refer to export reduction that would

1139

01 occur with the different flow regime. In the transition

02 period, in particular, the ad hoc flow subcommittee flows

03 would cause Grant to drop slightly more in any one year,

04 approximately 2 to 4,000 acre-feet, but have no export

05 impact, according to the Grant Lake Operations and

06 Management Plan submitted by DWP.

07 With consecutive drier years, Grant would drop with

08 both the DWP flows and the ad hoc flows, but there would not

09 be any export reduction unless there was a minimum Grant

10 storage level, such as the D-1631 target minimum of 11 and a

11 half thousand acre-feet that needs to be maintained.

12 So, for example, if Grant started the 1987 to '92

13 drought sequence at its target operating level of 35,000

14 acre-feet, the ad hoc flows would maintain the Grant storage

15 above 11 and a half thousand acre-feet and, thus, would not

16 require an export reduction. A 1976-77 drought sequence

17 would cause Grant to drop slightly below the 11 and a half

18 thousand acre-feet level. So, an export reduction of about

19 a thousand acre-feet would be required to maintain Grant

20 above that level.

21 In the post transition period, the export reductions

22 with the stream scientists' October 1995 flows were

23 estimated using the Los Angeles Aqueduct Simulation Model,

24 or LAASM model, to be about 4 cfs or 3,000 acre-feet on an

25 average annual basis. I show those calculations in my

1140

01 comments that are provided on DWP's draft plan.

02 I estimate that with the ad hoc flows the export

03 reduction is on average of about 3 cfs per year, and even

04 with the current DWP flow recommendations, the export

05 reduction would be about 2 cfs on average per year.

06 That is it for my testimony.

07 CHAIRMAN CAFFREY: Thank you, Mr. Vorster.

08 Who is next?

09 MR. DODGE: Mr. Harrison.

10 CHAIRMAN CAFFREY: Mr. Harrison, good morning, sir.

11 MR. HARRISON: Good morning, ladies and gentlemen. My

12 name is Larry Harrison. I am a registered civil engineer in

13 the State of California, and I have been an independent,

14 consulting engineer since early in 1995 when I left

15 employment with PG&E.

16 Prior to becoming a consultant, I was employed by

17 Pacific and Gas Electric Company for a period of almost 32

18 years in various engineering capacities, including project

19 management, supervision, contract administration, field

20 engineering, siting settings, some design, licensing,

21 permits, and economic studies. The types of projects I've

22 worked on, all with PG&E, included hydroelectric, fossil

23 fuel, steam power plants, nuclear plants, liquefied natural

24 gas, and also sediment management, and erosion control

25 projects.

1141

01 I have authored more than a dozen papers on sediment

02 management, reservoir sediment management, and watershed

03 erosion control and watershed management.

04 My experience in Mono Basin is limited. I conducted

05 two field trips to the Mono Basin area to observe streams

06 and facilities. First trip in March of 1996, March 7th and

07 8th, and also again October 3rd and 4th in 1996.

08 While there, I observed tributaries to Mono Lake,

09 including Lee Vining Creek, Walker Creek, Parker Creek, Rush

10 Creek, Mill Creek, and Wilson Creek, and also various

11 structures of the L.A. Department of Water and Power and

12 Southern California Edison Company. I looked at the

13 diversion dams at Lee Vining, Walker, and Parker Creeks. I

14 looked at portions of the Lee Vining Conduit, Grant Dam, and

15 its appurtenances at Grant Lake, Mono Gate Return Ditch,

16 Lundy Power House and Tailrace Ditch, and also the Mill

17 Creek Return Ditch.

18 Also, on March 8, I participated in a field meeting

19 with Southern California Edison representatives, Messers

20 Bruce Almond and Joe Valoma [phon]. They told us about the

21 operations of the Lundy Power House and the Tailrace Ditch

22 and the flows, also, at the Mill Creek Return Ditch.

23 I have reviewed several DWP documents, including the

24 Mono Basin Stream and Stream Channel Restoration Plan, the

25 Grant Lake Operations and Management Plan, and the Mono Gate

1142

01 Number 1 Return Ditch Geotechnical Stability Evaluation.

02 I have been retained early in 1996 by the Mono Lake

03 Committee and California Trout, California Trout,

04 Incorporated, to do three specific tasks. And my

05 involvement in the program, Mono Lake, is limited to those

06 tasks.

07 One was to investigate options for providing 600 cfs

08 channel maintenance flows in Rush Creek. Second task would

09 be to investigate options for improving sediment passage at

10 Lee Vining, Walker, and Parker Diversion Dams. And the

11 third task area was to investigate options for increasing

12 flows in Lower Mill Creek by diverting up to 70 cubic feet

13 per second from Wilson Creek.

14 In regards to the first task, the Rush Creek channel

15 maintenance flows, I reviewed DWP's proposals for channel

16 maintenance flows, and I was also asked to recommend which

17 alternative would be the most reliable, and to estimate the

18 conceptual cost of the most reliable option.

19 DWP proposed four options. The first to install three

20 42-inch siphon pipes over the spillway or in the spillway at

21 Grant Dam. Pipes 2500 feet long with a capacity, total

22 capacity of 300 cfs.

23 I believe this option would be unlikely to pass mustard

24 before the Division of Safety of Dams in that it would block

25 the spillway. And there would be an alternative or burying

1143

01 the pipes in the spillway, but that is a tough job in the

02 type of terrain that is there and could jeopardize the

03 integrity of that spillway structure. So, I would not

04 recommend it.

05 Also, as an operating problem, there is very much

06 limited range of lake levels over which the siphon could be

07 operated. So it's problematic as to whether it would be

08 available when needed; and also siphons do have a notorious

09 reputation for not always working when you want them to

10 work.

11 The second proposal would be DWP was to install a 300

12 cfs pumping station in the lake, discharging through a

13 78-inch diameter pipeline, approximately 2,500 feet to Rush

14 Creek. This, I think, would be more reliable than the

15 siphons. It's direct. Looking at DWP's numbers, it is

16 extremely expensive, costing in excess of 14,000,000; and

17 that doesn't include operation and maintenance costs, nor

18 the cost to provide power to a large pump. There is not --

19 it appears there is not sufficient existing power at the dam

20 to power such a large machine.

21 Also, it does not -- same as the siphons; it does not

22 provide any water to Reach 1 of Rush Creek on a continuous

23 basis.

24 The third proposal of DWP was to construct a new outlet

25 tunnel at the dam, ten-foot diameter tunnel, approximately

1144

01 1,700 feet long. This, obviously, could meet a number of

02 requirements. It is very flexible. It could provide

03 continuous flows to Rush Creek in the Reach 1 year round,

04 be highly reliable due to its simplicity. It would just be

05 control of an outlet gate or outlet valve that would control

06 the flows. Flows up to 600 cfs could always be met at any

07 season or time of year, despite what runoffs or without

08 coordination with any other facilities.

09 I chose this option as the one I would recommend as

10 most reliable out of the lot. I estimated the cost, a

11 conserve estimate would be approximately 8.3 million,

12 including engineering and overheads. And if we added 30

13 percent contingency to that, my cost estimate is 10.8

14 million. I believe with good project management and good

15 design and competitive bidding, those costs could probably

16 be shaved considerably, also.

17 The Los Angeles Department of Water and Power's

18 recommended proposal is to provide an upgrade of the Mono

19 Gate Return Ditch to capacity of 380 cfs and to supplement

20 those flows with releases from the Lee Vining Creek conduit

21 overflow structure. This, again, is more so than even the

22 -- proposals one and two would require close coordination of

23 operations of the Lee Vining conduit and I'll add the

24 additional factor of coordinating with high flows in Lee

25 Vining Creek. This option would not rewater Reach 1, and I

1145

01 think the reliability here is questionable.

02 Going to task two, which is sediment passage at Lee

03 Vining, Walker and Parker Creek Diversion Dams. DWP

04 proposes to draw down the water in the ponds during the

05 October through March season, which for the hydrology of

06 this watershed is the low flow season on these streams. And

07 then at three- to five-year intervals, to dredge the ponds

08 and place the sediment dredged on the stream banks

09 downstream of the ponds where it could be eroded by high

10 flows back into the stream, to be carried on down to provide

11 a continuum of sediment passage.

12 There is a flaw in this proposal, in that you don't

13 move much sediment low flows. There is very little sediment

14 comes into the ponds on low flows. I believe that such an

15 operation would cut a little ditch or gully through the

16 sediment in the ponds, and that is about all it would do.

17 It wouldn't really be very beneficial.

18 I have suggested three alternatives for improving upon

19 these plans. First alternative, simply take the basic

20 concept of drawdown flushing that DWP has proposed and

21 improve it to do the drawdowns during the high flow periods

22 on these streams in the spring, and drawdown only during the

23 period of time that the flows are very high. To accommodate

24 this, some new larger outlets may be needed at the dams. I

25 propose in doing some very rough backend of the envelope

1146

01 calculations; that's probably four 48-inch gates at sluice

02 gates at the Lee Vining Creek structure would be adequate to

03 carry, say, a five-year return flow through the sluice gates

04 and similarly at Walker and Parker, a 36-inch at Walker and

05 a 42-inch gate at Parker Creek would do the job.

06 I estimated the cost for these facilities to be

07 approximately $124,000 at Lee Vining Creek and 23,000 at

08 Walker Creek and $27,000 at Parker Creek. And, again, these

09 are very approximate back of the envelope-type

10 calculations.

11 A second alternative proposed would be the use of Iowa

12 vanes or similar things. The term "Iowa vane" is a patented

13 facility. There are other vanes that operate similarly that

14 have a little different shape. An Iowa vane is basically if

15 you can imagine one of the concrete barrier rails that the

16 highway department puts out in traffic, and they move them

17 around from one position to another, commonly called a

18 K-rail, is the highway terminology. But am Iowa vane is

19 something that looks similar to that. Maybe a little taller

20 and a little shorter in configuration. They are placed in

21 the stream and they create turbulences and vortices that,

22 basically, resuspend sediment and route sediment on through

23 channel sections, or particularly useful in front of intake

24 structures and such.

25 So, I guess, my testimony isn't here to give a lesson

1147

01 on Iowa vanes, but this is something to be investigating. I

02 have observed some interesting videos showing these vanes in

03 action, particularly in the modeling tests that were

04 conducted at Colorado State University for PG&E. I was

05 quite impressed with their efficiency in moving sediments

06 and extending flushing cones stream from reservoir outlets.

07 I think it is something that would be very economical to

08 install. If they are used, they would probably have a cost

09 in the order of 10,000 at the smaller ponds, and perhaps

10 $20,000 at the Lee Vining Creek ponds. They are -- I would

11 advise that an expert in this area, like Dr. Jacob Odgaard

12 from the Iowa Institute of Technology, be consulted on

13 something like this, to make recommendations.

14 A third alternative I looked at would be high flow

15 bypass channels. I put up a little cartoon here to look

16 at. Basically, route sediments around the ponds. Flow

17 being in this direction. This is the pond at the diversion

18 dam. You would have to install an upstream headworks, such

19 that it could divert high flows down that are diverted

20 around through the bypass channel, and perhaps this could be

21 adjusted through gates and weirs here that this structure,

22 to allow just the flows into the pond that are needed for

23 diversion to the Lee Vining Creek conduit.

24 So, basically, this is a scheme here for eliminating

25 -- looking at a cross section of pond, you see a level

1148

01 surface. Of course, the pond is what causes the sediment to

02 fall out and decrease the water velocity, the retention

03 time, the sediment can fall out, by putting the channel

04 around it.

05 The bottom dotted lines trace the profile of the

06 channel. What it's doing is just simply restoring the

07 gradient of the stream around the dam, bypassing the dam.

08 So whatever sediments are carried by the stream would simply

09 be carried through the channel on around the stream.

10 MR. FRINK: Mr. Harrison, so the record is clear, the

11 drawing that you are referring is Figure 1 to your --

12 MR. HARRISON: Figure 1 from my testimony.

13 MR. FRINK: Your testimony was Mono Lake Committee

14 Exhibit 1.

15 Thank you.

16 MR. HARRISON: Looking at the cost of these options,

17 we are looking at, for Walker Creek and Parker Creek, I

18 estimated approximately $50,000 for each channel; for Lee

19 Vining Creek would be on the order of $250,000. These were

20 based on my estimate for a 50-year return flow, which I

21 extracted from one of the charts in DWP's documents of 110

22 cfs at Walker and Parker and 680 cfs at Lee Vining Creek.

23 Of course, this channel, a big part of the cost is riprap or

24 other armoring of the channel to make sure it is a stable

25 channel that doesn't erode during these high flows.

1149

01 The third task I was asked to review, and that was how

02 to move 70 cfs from either the tailrace channel at -- put up

03 another diagram here.

04 CHAIRMAN CAFFREY: While you are doing that, Mr.

05 Harrison, let me just remind you that there is an hour limit

06 on direct; and in this case, unless Mr. Dodge is going to

07 make a showing for more time, there is about 25 minutes

08 left. So you still have one more witness. I just want you

09 to be mindful of that.

10 MR. DODGE: I would advise Mr. Harrison that we are

11 fine.

12 MR. HARRISON: I will show this upper map here, which

13 is Figure 3 from my testimony, and showing an overview of

14 Conway. Some photographs I had that is not in the

15 testimony, just as a reference point, to help people orient

16 between the map and where things are actually at.

17 This is Highway 395 through the -- and this is the

18 Conway Ranch area. Lundy Powerhouse is over here. Mono

19 City is in this area right above the marker. Mill Creek is

20 right there on the other side of Mono City. Wilson Creek is

21 coming around this way. And, anyway, those are not nice

22 pictures; it doesn't tell a whole lot in detail.

23 But looking down on this area here, here is Mono City.

24 Lundy Powerhouse here. The upper blue is Wilson Creek

25 traced out, and the lower one is Mill Creek.

1150

01 I looked at two different alternatives for moving water

02 from this stream to this stream. I'm not arguing this is a

03 ditch or creek. This is definitely Tailrace Ditch down to

04 this point here from the powerhouse. I've eliminated the

05 idea of using improved ditches because of the porosity of

06 the soil in this region, excessive leakage. And I looked at

07 the pipelines, solicited prices on pipe -- plastic,

08 concrete, and steel pipe. Concrete pipe is much the

09 cheaper. From hydraulic calculations I calculated, I

10 estimated the size of pipe that was going to be needed to

11 carry from this point to this point; that is, from Wilson

12 Creek to Mill Creek. Also --

13 MR. DODGE: You said from Mill Creek to Mill Creek.

14 MR. HARRISON: I'm sorry.

15 MR. DODGE: You meant from --

16 MR. HARRISON: From Wilson Creek to Mill Creek.

17 MR. DODGE: From the Lundy Powerhouse to Mill Creek?

18 MR. HARRISON: From the Lundy Powerhouse to Tailrace

19 Ditch, to Mill Creek. And as an alternative, we looked at a

20 pipeline from east of Conway Ranch from Wilson Creek to

21 Mill Creek, at a point just to the east of Mono City. Mono

22 City being here.

23 Where this line here -- I looked at two different

24 options. One was to follow the existing ditch alignment

25 throughout, which included this little loop of green, back

1151

01 around; the ditch follows the contour over here. That was

02 about 6,000 feet long. That option would have cost

03 approximately $878,000, according to my estimate. And that

04 was a 42-inch reinforced concrete pipeline.

05 The other option was to cut off this loop by putting in

06 an inverted siphon across this swale here to Lundy Road.

07 That would reduce the length of pipeline to 3,800 feet. And

08 through that reduced length, we can also reduce the size to

09 36 inch. That option would cost on the order of $521,000.

10 The other two options over here -- well, I looked at

11 two over here. The B-1 and B-2. B-2 is shown. B-1 is this

12 little green line change. Instead of this direct route into

13 the Mill Creek, we would angle down slope, across slope

14 here, and deliver water to Mill Creek, perhaps, a couple

15 thousand feet upstream from where the other delivery point

16 would be. This route is 11,000 to 12,000 feet long.

17 Requires a 42-inch pipeline. And either of these options

18 would cost on the order of $2,000,000.

19 Obviously, if you are going to make a selection on the

20 basis of cost, option A-2, which is 3,800 feet of pipeline

21 here, is the choice.

22 I think that about summarizes my testimony.

23 CHAIRMAN CAFFREY: Thank you, Mr. Harrison.

24 Dr. Stine.

25 DR. STINE: Yes, thank you. You know who I am, and

1152

01 what my qualifications are. I will be very brief.

02 I have two points that were addressed in my direct

03 examination for Mono Lake/Audubon, and, as Mr. Dodge asked

04 me to do, I will confirm this is Exhibit 5. I really can

05 dispense with the first of these very, very quickly.

06 There was a nomenclature upheaval about what to call

07 the Rush Creek Reach immediately above Biggest Bend. There

08 was some confusion in there for a while. My understanding

09 now is that that confusion has been completely cleared up,

10 and that it seems everyone is on board to rewater this

11 particular reach immediately above Biggest Bend on Rush

12 Creek. That has become, then, a non problem.

13 The second point, almost equally as brief, regards

14 sediment passage on Parker and Walker Creeks. Larry

15 Harrison has just addressed this. My concern here is that

16 there seems to have been forgotten in all of these

17 discussions one of the conditions that benefited fishery on

18 Rush Creek, and that is the springs that existed immediately

19 below the Narrows on Rush Creek, on the west side of Rush

20 Creek, the so-called at Vestal Springs. They have provided

21 fish habitat. They were one of the elements that Elden

22 Vestal said contributed tremendously to the quality of the

23 fishery through the Rush Creek bottomland.

24 Peter Vorster and I did an analysis, a historical

25 analysis, a couple years back and produced a report on this.

1153

01 And our conclusion, I think quite clearly, was that the

02 springs, which are natural and which have been there for

03 many hundreds of years, were lost because the distributary

04 channels on the Parker and Walker Creek fans were dewatered

05 at the time that, or shortly after the Department of Water

06 and Power put in their diversion facilities on those two

07 streams.

08 Distributary channels on alluvial fans are common.

09 Like in a delta situation, a stream hits an alluvial fan and

10 it tends to break into several channels. There were two

11 channels on Parker Creek. There were three channels on

12 Walker Creek. In both cases, right up at the apex of the

13 fans on the two streams. I would argue simply that if we

14 are going to do a bypass channel similar to what Mr.

15 Harrison showed as his alternative three, I believe it was

16 for Parker and Walker Creeks, that it would be possible to

17 rewater some of these channels, really at the same time,

18 with little more effort.

19 The idea here would be to get water into these

20 distributary channels and lose it to the ground. They were

21 on the earliest maps from the 1880s and '90s, withering

22 streams. So, simply get water into those channels, lose it

23 to the ground. It then reappears down in the Rush Creek

24 bottomland.

25 And I think that concludes my testimony. Thank you.

1154

01 CHAIRMAN CAFFREY: Thank you, Dr. Stine.

02 Anything else, Mr. Dodge, from this panel?

03 MR. DODGE: Nothing else.

04 CHAIRMAN CAFFREY: Thank you, sir.

05 We will then go to cross-examination, and we will begin

06 with U.S. Forest Service.

07 Is there anyone here for U.S. Forest Service that

08 wishes to cross-examine these witnesses?

09 No one responding --

10 MS. BELLOMO: Chairman Caffrey.

11 CHAIRMAN CAFFREY: Yes, Ms. Bellomo.

12 MS. BELLOMO: Can we go off the record for a moment?

13 Mr. Bellomo wanted to make a statement. I think just speak

14 briefly and, perhaps, off the record in case any party had

15 any questions about it being proper to be in the record.

16 MR. BIRMINGHAM: I have a question about it. I have a

17 question about Mr. Bellomo making a statement to the Board

18 at all. He is going to be a witness, and if he is going to

19 offer testimony, he can offer at that time.

20 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

21 Let me say that we had an opportunity for policy

22 statements.

23 MS. BELLOMO: This wouldn't be a policy statement. This

24 is a factual statement, but we can wait. That is fine.

25 CHAIRMAN CAFFREY: That would be more appropriate than

1155

01 going on and off the record. I am not sure what the

02 justification for something like that to be. I would prefer

03 that we keep everything on the record.

04 Bureau of Land Management, anyone here representing the

05 Bureau?

06 Is that you, Mr. Russi?

07 MR. RUSSI: I made it.

08 CHAIRMAN CAFFREY: I know you were here earlier. You

09 look like a familiar face. Good to see you. Welcome back.

10 MR. RUSSI: Thank you. I just had a few questions here

11 this morning, Mr. Chairman.

12 CHAIRMAN CAFFREY: Please proceed. You are aware of

13 the rules on cross-examination?

14 MR. RUSSI: I will do my best.

15 CHAIRMAN CAFFREY: In terms of time and scope of your

16 questioning? Quite a bit different than what is allowed in

17 recross.

18 ---oOo---

19 CROSS-EXAMINATION

20 BY THE BUREAU OF LAND MANAGEMENT

21 BY MR. RUSSI

22 MR. RUSSI: My first questions are to Mr.

23 Vorster. And I am going to ask that we refer to Mr.

24 Vorster's direct testimony, R-NSC/MLC-7, on Page 2. And I

25 am looking at the first full paragraph, and I am going to

1156

01 read a couple of sentences here, about the middle of the

02 paragraph.

03 And it begins:

04 The MLC proposal is to restore close to

05 natural flows in Mill Creek, impaired by

06 Lundy Reservoir, in order to restore the

07 waterfowl habitat in Mill Creek to the level

08 recommended by the waterfowl scientists and

09 to restore a naturally functioning stream

10 ecosystem and bottomlands. (Reading.)

11 Continuing:

12 MLC proposes to return all of the water to

13 Mill Creek, except that which is necessary to

14 maintain Wilson Creek riparian corridor

15 through Conway Ranch and to maintain the

16 Simis and Thompson Ranch meadows and trees.

17 (Reading.)

18 Mr. Vorster, how was it determined that all of the

19 water except for the small amounts you reference for Wilson

20 Creek and irrigation flows for Simis and Thompson Ranch

21 meadows and trees, how was it determined that all of the

22 water was necessary to restore the waterfowl habitat in the

23 stream ecosystem and bottomlands for Mill Creek.

24 MR. VORSTER: I am not a waterfowl scientist. As I

25 stated in my testimony, as you just read, I went by the

1157

01 recommendations of the waterfowl scientists, as stated in

02 the waterfowl plans, that said that all or close to all of

03 the water needed to be restored to Mill Creek in order to

04 restore the waterfowl habitat.

05 MR. RUSSI: If we can go to Page 3, please, part d, on

06 that page, and I will read the first two sentences. It

07 says:

08 A release of 2 cfs from April through

09 November to maintain Wilson Creek riparian

10 corridor through Conway Ranch. (Reading.)

11 Then it says:

12 Although the exact amount required is not

13 known, I have been advised by Diana Jacobs,

14 riparian specialist for the State Lands

15 Commission, that the release needs to be

16 enough to keep the root zone of the plants

17 moist. (Reading.)

18 In your discussions with Dr. Jacobs, what do you mean

19 by "root zone"?

20 MR. VORSTER: What I mean by "root zone," as was

21 advised to me by Diana Jacobs, and so I think that she would

22 be the best person to answer it, but the way I understand it

23 would be the area in the Wilson Creek bed itself, that the

24 roots have access to, would be kept moist.

25 MR. RUSSI: Have you or Dr. Jacobs measured the extent

1158

01 of the root zone in Wilson Creek?

02 MR. VORSTER: I have not measured the extent of the

03 root zone. I can't speak for Dr. Jacobs.

04 MR. RUSSI: I would like to continue down; the next

05 sentence says:

06 I believe that a release of 1 cfs would be

07 sufficient to keep the root zone moist

08 through the Conway Ranch because Wilson Creek

09 gains water as it flows east of Highway 395.

10 (Reading.)

11 How much water have you measured in Wilson Creek

12 gaining east of Highway 395?

13 MR. VORSTER: I myself have not made any measurement.

14 I would -- my observations are limited to just visual

15 observations and measurements that were taken by other

16 people, including yourself. And there were measurements

17 taken by EBASCO when they were doing investigation in that

18 area.

19 So, the amount of gain in the reach of Wilson Creek

20 below Highway 395 is -- I conservatively estimate it at 1

21 cfs. In the Conway Ranch Environmental Impact Report that

22 was issued in the late 1980s, there was also quite a

23 discussion of the gains in Wilson Creek. And in those

24 discussions, they indicated considerably more gain than I

25 estimated. I was being extremely conservative when I said 1

1159

01 cfs. I think in those reports they talked about 3 to 5 cfs.

02 MR. RUSSI: Are you aware of what time of year those

03 measurements were taken to establish 3 to 5 cfs gain?

04 MR. VORSTER: I can't remember off the top of my head,

05 but I think it was -- they did do a monthly water balance.

06 And I think they showed greater gains during the irrigation

07 season and smaller gains in the winter season. I would have

08 to refer to those documents to fully answer your question.

09 MR. RUSSI: Well, I guess I need to go back and ask you

10 then if there is apparently some uncertainty here about the

11 amount of water that is available east of Highway 395 in

12 Wilson Creek. And that the root zone itself, to your

13 knowledge, has not been measured, if I am stating this

14 correctly, how your statement that you believe that a

15 release of 1 cfs would be sufficient to keep the root zone

16 moist is within the context of known information.

17 MR. VORSTER: As I stated in my testimony, the exact

18 amount required is not known. There is a lot of uncertainty

19 associated here. What I was doing was using my professional

20 judgment, based upon my own observations and observations of

21 other people to make those estimates. There is a lot more

22 work that needs to be done. But I do believe that a small

23 amount of water is necessary to keep the root zone moist in

24 Wilson Creek.

25 MR. RUSSI: Do you believe it would be beneficial to

1160

01 understand the soil and water dynamics of Wilson Creek

02 Channel in order to come up with an appropriate flow in

03 Wilson Creek on an annual situation?

04 MR. VORSTER: Yes. More information is obviously

05 needed. What the exact information is, I would defer to

06 people like Dr. Jacobs and yourself and other specialists in

07 that field.

08 MR. RUSSI: I want to go to Page 4 right at the top, in

09 your testimony. In the very first complete sentence you

10 state:

11 Downstream of the highway, Mill Creek loses

12 water to the groundwater system down to the

13 stream reach just below County Road.

14 (Reading.)

15 How much water have you measured being lost?

16 MR. VORSTER: Again, I have not done any current

17 metering measurements myself. I have been in the area quite

18 a bit over the last 20 years, and recently in the last

19 couple years I have taken the effort to estimate flows above

20 395, estimate flows down at the County Road. Something I do

21 routinely. Plus in the Mill Creek -- in that stream

22 evaluation report that Department of Fish and Game released

23 in the past year has some measurements as well. Has some

24 measurements in that case.

25 There is also visual measurements -- visual

1161

01 observations that the Department of Water and Power has

02 taken at Mill Creek at the County Roads. So, there is quite

03 a bit of visual observations and a few stream flow

04 measurements that were taken to give us a feeling for what

05 the losses are, which are considerable.

06 MR. BIRMINGHAM: I am going to object and ask that the

07 answer be stricken on the grounds it is non responsive.

08 CHAIRMAN CAFFREY: I apologize to the parties. I was

09 distracted. Could somebody repeat what happened for me,

10 please?

11 MR. RUSSI: I asked the question: How much water is

12 lost in the reach of stream downstream of Highway 395 to the

13 County Road?

14 MR. BIRMINGHAM: Actually, I would ask that the Court

15 Reporter go back and read the question that was asked.

16 CHAIRMAN CAFFREY: Thank you.

17 Would you read the question?

18 (Record read as requested.)

19 MR. BIRMINGHAM: My objection is that Mr. Vorster did

20 not answer that question. He answered a completely

21 different question. I believe the answer to that question

22 is, "I haven't measured any." If that is his answer, that

23 is what he should state. And I ask that the remainder of

24 the answer to the non asked question be stricken.

25 CHAIRMAN CAFFREY: Please read the remainder of that.

1162

01 (Record read as requested.)

02 MR. DODGE: I would submit, Mr. Chairman, that all of

03 that answer is responsive to the general subject matter of

04 the question which was losses in a particular section of

05 stream.

06 CHAIRMAN CAFFREY: Thank you, sir.

07 Mr. Birmingham.

08 MR. BIRMINGHAM: The specific question was: How much

09 losses have you measured? And Mr. Vorster answered that in

10 "I have not measured any." That ought to be -- we are going

11 to be here for weeks if every witness responds to 14

12 different questions in an answer to a very specific

13 question.

14 CHAIRMAN CAFFREY: I wouldn't say weeks, but maybe an

15 extra couple of days, Mr. Birmingham, which is perfectly all

16 right with me.

17 Let me just say to you that I admonished the witnesses

18 earlier today, before we got started. I am going to do it

19 again. I am going to leave this statement in the record, so

20 will my admonition be in the record. I am going to tell Mr.

21 Vorster, and any other witnesses that are going to appear

22 today, that you need to be brief and crisp. And I wish that

23 you do not take license and dissertate on anything that

24 could be remotely related to the questions. So, please be

25 very precise.

1163

01 And please get on the questioning as briefly and

02 quickly as you can, sir.

03 MR. RUSSI: As a follow-up to your statement there in

04 that first complete sentence, have you measured loss in the

05 reach continuously, on an annual cycle, or do you know, does

06 the reach change in its loss of water over an annual cycle?

07 MR. VORSTER: As I stated before, my observations are

08 limited to visual observations, and not measurements. So,

09 if your specific question is measurements with the current

10 meter, I have not done that myself. I have visual

11 observations.

12 MR. RUSSI: Thank you.

13 Going down to the bottom of the page, on Page 4,

14 please, under part g, and I am going to refer to the second

15 sentence there. You state:

16 A combination of losses in and diversions

17 from Wilson Creek cause it to periodically to

18 dry up downstream from the Conway Ranch.

19 (Reading.)

20 Skipping down one full sentence, you continue:

21 No water was diverted from Mill Creek in the

22 late fall and winter from 1962 to 1968 so

23 Wilson Creek did not have a supply from the

24 power plant. (Reading.)

25 Continuing with the last sentence:

1164

01 A small amount of accretion occurs in the

02 reach of Wilson Creek through the Conway

03 Ranch, but for most of its length it stayed

04 dry. (Reading.)

05 What do you mean by "most of its length"?

06 MR. VORSTER: I am talking about Wilson Creek as we

07 now define it, from the power plant all the way down to Mono

08 Lake. We can get the map, but it's -- so if you take that

09 -- the dot here on Exhibit R-SLC/DPR-424 is the Lundy

10 Powerhouse. Wilson Creek travels through this whole reach,

11 as we now call it. When there is no water discharging from

12 the powerhouse it is my judgment that the accretion in this

13 reach might keep this wet, but clearly all of this would be

14 dry.

15 MR. DODGE: Can you spell out for the record what you

16 mean by "this"?

17 MR. VORSTER: I am sorry. The reach from approximately

18 the Conway Ranch boundary all the way down to Mono Lake.

19 So, looking at this map, I would say that, in terms of

20 stream mileage, is most of the length or a majority of the

21 length of Wilson Creek would be dry if there was no water

22 discharging from the power plant.

23 MR. RUSSI: Continuing with my question, then, from

24 1962 to 1968, you're stating that the stream would have been

25 dry. You're making this determination how?

1165

01 MR. VORSTER: Again, because there was no discharge

02 from the power plant, the only source of water for Wilson

03 Creek would be its natural runoff. As we have testimony

04 from a number of people, including Dr. Stine, that indicates

05 that Wilson Creek is an ephemeral stream and occasionally

06 would get runoff from its natural drainage. But that is a

07 very occasional event.

08 MR. RUSSI: Thank you.

09 I have one question for Mr. Harrison, please.

10 During your recent oral testimony here, Mr. Harrison,

11 you stated that there is excessive leakage. I think you

12 were referring to water loss in Wilson Creek when you were

13 discussing that drainage. And I would like you to tell us

14 how you determined that there was excessive leakage in

15 Wilson Creek?

16 MR. HARRISON: Well, two factors led me to the

17 conclusion that there was excessive leakage. In our

18 discussions in field we had in March with Southern

19 California Edison, Mr. Bellomo and Mr. Almond both, I think,

20 mentioned that the ditches lost a lot of water en route,

21 particularly what is now called Wilson Creek lost water and

22 also the Mill Creek Diversion Ditch. Also, my observations

23 of the character of the soils in the area are very coarse,

24 loose, open drained, pretty much lacking in fine materials.

25 Though, my experience is that with soils as these, they are

1166

01 very permeable soils. So a lot of water would percolate

02 into the soils unless it was a lined ditch with some

03 impermeable material.

04 MR. RUSSI: Did you walk the entire Wilson Creek from

05 its point of diversion down to Highway 167 at the time you

06 were down there?

07 MR. HARRISON: We didn't walk the entire length. We

08 did walk a length. Let me show you on the map, here.

09 Approximately this point here, we walked down to this

10 area and back up over, around here. Approximately to the

11 County Road, just short of the County Road. We walked and

12 then we accessed this area in here on the County Road.

13 MR. RUSSI: Did you observe Wilson Creek at all

14 upstream of the Conway Ranch property to its point of

15 diversion?

16 MR. HARRISON: Wilson Creek upstream of the -- what do

17 you call the point of diversion sir?

18 MR. RUSSI: Where the ditch of Wilson Creek comes off

19 the tailrace ditch of the power plant.

20 MR. VORSTER: I accompanied Mr. Harrison, so if I may

21 jump in.

22 MR. RUSSI: Go ahead.

23 MR. VORSTER: This is right here where we had -- the

24 junction of the return ditch with the tailrace is where we

25 had the meeting with Bert Almond and Joe Bellomo. I think

1167

01 we investigated Wilson Creek just downstream of that. And

02 the return ditch itself.

03 MR. HARRISON: Actually, I don't recall we looked at

04 this much at all, in this reach, from here to Conway Ranch.

05 We did -- we are standing here and visual observations, of

06 course, for several hundred feet from this point. We also

07 walked a short distance down the Mill Creek Diversion

08 Ditch.

09 MR. RUSSI: So, in your reference here, you are saying

10 that you were at the point of diversion of Wilson Creek with

11 the tailrace ditch from Lundy Power Plant, but apparently

12 you were not at any point along that stream down to the

13 Lundy Power Plant road and east of that point, across

14 Highway 395, to the Conway Ranch property; is that true?

15 MR. HARRISON: That is right.

16 MR. VORSTER: We just looked down here. We did look at

17 the return ditch around the Lundy Road. So, we looked at

18 that. But in terms of Wilson Creek, itself, I think we

19 didn't walk very far down it from the diversion point

20 there.

21 MR. HARRISON: Of course, I have crossed it on the

22 highway several times, looked up and down it also.

23 MR. RUSSI: Just for the record, and so I am clear on

24 this, your statement about the soil type and the loss of

25 water in the drainage is in reference to that portion of the

1168

01 drainage downstream from Conway property, primarily?

02 MR. HARRISON: No. I think my reference about soil

03 percolation and loss of water to the soils is also

04 applicable to the Mill Creek Diversion Ditch region, as well

05 as this area downstream of Conway Ranch.

06 MR. RUSSI: Thank you.

07 That's all. Thank you, Mr. Caffrey.

08 CHAIRMAN CAFFREY: Thank you, Mr. Russi.

09 Ms. Bellomo, do you have questions of these witnesses?

10 MS. BELLOMO: Yes, I do. Thank you.

11 MR. DODGE: Would this be a good time to take a morning

12 break?

13 CHAIRMAN CAFFREY: If you will indulge me, Ms. Bellomo,

14 I think a good suggestion. Let's take about ten minutes.

15 Thank you.

16 (Break taken.)

17 CHAIRMAN CAFFREY: On the record.

18 Ms. Bellomo, your turn to cross-examine the witnesses.

19 You're on Mr. Vorster.

20 MS. BELLOMO: Good morning.

21 CHAIRMAN CAFFREY: Welcome back.

22 MS. BELLOMO: Thank you.

23 ---oOo---

24 //

25 //

1169

01 CROSS-EXAMINATION

02 BY PEOPLE FOR MONO BASIN PRESERVATION

03 BY MS. BELLOMO

04 MS. BELLOMO: Good morning, gentlemen. I just have a

05 couple questions to start off for you, Mr. Harrison.

06 I understood from your testimony on cross-examination,

07 I believe that you have made only two trips to the Mono

08 Basin; is that correct?

09 MR. HARRISON: That is correct. There were other

10 personal trips. I have been through the area.

11 MS. BELLOMO: How long did you spend in the Mono Basin

12 on each of those trips that you made, related to your

13 testimony in this case?

14 MR. HARRISON: Better part of two days on each trip.

15 MS. BELLOMO: What locations did you visit on each

16 trip?

17 MR. HARRISON: I testified to the locations I visited.

18 I visited the diversion points at Lee Vining Creek, Walker

19 and Parker Creek, Rush Creek area of the Grant Dam and the

20 Mono Gate Return Ditch, and Mill Creek in the vicinity of

21 Lundy Powerhouse, and also Wilson Creek downstream of Conway

22 Ranch, and Mill Creek at other points where it crosses the

23 County Road and the highway.

24 MS. BELLOMO: Can you tell me when the visits were,

25 these two visits?

1170

01 MR. HARRISON: One was March 7th and 8th, 1996. The

02 other was October 3rd and 4th, 1996.

03 MS. BELLOMO: You described various methods of

04 returning the water to Mill Creek from the Lundy tailrace,

05 correct?

06 MR. HARRISON: Yes.

07 MS. BELLOMO: That includes siphoning and use of

08 pipelines, and were there other methods?

09 MR. HARRISON: Well, I lightly considered a ditch, but

10 considering what I was informed about the leakage, loss of

11 water in the various ditches, and what I observed in the

12 loss of water in Mill Creek downstream area, I discarded the

13 idea of using ditches and went to pipelines as being a sure

14 method of conveying water without loss.

15 MS. BELLOMO: So, am I correct, that you -- what you

16 were doing was an engineering analysis of what would it take

17 to to perform such a project?

18 MR. HARRISON: Yes.

19 MS. BELLOMO: Is it your understanding that the purpose

20 of this engineering project would be to return Mill Creek to

21 its natural condition?

22 MR. HARRISON: I can't really say -- nothing

23 considered whether it would return to a natural condition or

24 not. It would obviously approach more natural conditions

25 than are there now.

1171

01 MS. BELLOMO: You testified about meeting with Mr.

02 Bellomo and another representative of Southern California

03 Edison during one of your field trips, correct.

04 MR. HARRISON: Yes.

05 MS. BELLOMO: Did you meet with Mr. Bellomo on only one

06 occasion?

07 MR. HARRISON: Yes.

08 MS. BELLOMO: Am I correct that when you referred --

09 you referred in your testimony to walking on various areas

10 of Wilson and Mill Creek, that you were not referring to

11 being with Mr. Bellomo during those times?

12 MR. HARRISON: No. I was with Mr. Bellomo at the

13 Lundy Powerhouse tailrace area and the upstream portion of

14 the Mill Creek Diversion Ditch, or return ditch.

15 MS. BELLOMO: The return ditch.

16 Thank you. No more questions for you right now. Thank

17 you.

18 Mr. Vorster, turning to your testimony at Page 2. In

19 the first full paragraph, the middle of the paragraph, you

20 state:

21 The Mono Lake Committee proposal is to

22 restore close to natural flows. (Reading.)

23 You go on to describe the proposal. My question is:

24 Is that currently the Mono Lake Committee position?

25 MR. VORSTER: It is my understand that is their

1172

01 position, yes.

02 MS. BELLOMO: And you indicate in that second half of

03 that first full paragraph that your -- the Mono Lake

04 Committee proposal would provide -- let me rephrase this.

05 I will just quote from your testimony. You state:

06 The Mono Lake Committee proposes to return

07 all the water to Mill Creek except that which

08 is necessary to maintain the Wilson Creek

09 riparian corridor through Conway Ranch.

10 (Reading.)

11 Can you tell me how many cfs you are referring to

12 there?

13 MR. VORSTER: In the testimony that I provided I used

14 number of 2 CFS from April through November.

15 MS. BELLOMO: Are you proposing a dedicated water right

16 to Wilson Creek of that amount?

17 MR. VORSTER: Can you repeat the question again?

18 MS. BELLOMO: Are you proposing that there should be a

19 dedicated water right?

20 MR. VORSTER: I am not making that proposal right now.

21 You have to understand this is the Mono Lake Committee

22 proposal. I was doing what they told me to do, so I am not

23 making the proposal.

24 MS. BELLOMO: Is the Mono Lake Committee making such a

25 proposal?

1173

01 MR. VORSTER: I don't know.

02 MS. BELLOMO: From what you just said, I take it that

03 the Mono Lake Committee is not proposing a year-round flow

04 of 2 CPS in Wilson Creek; is that correct?

05 MR. VORSTER: At the current time, the Mono Lake

06 Committee proposal consists of making a release of 2 cfs

07 from April through November to maintain the Wilson Creek

08 riparian corridor. So I guess the answer to your question

09 is, no, it is not a year-round.

10 MS. BELLOMO: Would a 2 cfs flow in Wilson Creek from

11 April through November be sufficient to maintain the

12 self-sustaining wild brown trout fishery that is in Wilson

13 Creek?

14 MR. VORSTER: I don't know. I am not a fisheries

15 expert.

16 MS. BELLOMO: I have heard your testimony earlier

17 today, that, in your opinion, if there is no release from

18 the Lundy Powerhouse, then Wilson Creek dries up below

19 Conway Ranch; is that correct?

20 MR. VORSTER: That's correct. Through Conway Ranch

21 there is a gaining reach there so there would probably be a

22 little bit of water through there.

23 MS. BELLOMO: How much are you estimating would be in

24 Wilson Creek if no water was released from the powerhouse

25 source between -- well, after November and up to April?

1174

01 MR. VORSTER: Downstream of the tailrace through Conway

02 Ranch, it would be a small residual flow; you know, pools in

03 the Upper Reach, maybe, set up a little flow through Conway

04 Ranch, and then no surface flow below Conway Ranch.

05 MS. BELLOMO: Do you have an estimate of how much flow

06 this small amount would be in Conway Ranch.

07 MR. VORSTER: As I testified, I think it would be -- I

08 conservatively estimate through Conway ranch it could be 1

09 cfs, might be. I think Terry Russi made some measurements

10 this past fall that indicated the gain was about 2 cfs. So,

11 depending on the time of the year and the type of water

12 year, it would be a small amount of flow.

13 MS. BELLOMO: You didn't do any analysis to support

14 this opinion; is that correct?

15 MR. VORSTER: Other than what I testified to, looking

16 at available documents, including the Conway EIR, my own

17 visual observations, talking to Terry Russi, talking to

18 locals in the area.

19 MS. BELLOMO: What documents have you looked at that

20 would provide us with any insight into how much water would

21 be in Wilson Creek between November and April if you weren't

22 releasing any water from the powerhouse?

23 MR. VORSTER: There are no documents that go

24 specifically to that question.

25 MS. BELLOMO: You indicate on Page 2 that the Mono Lake

1175

01 Committee proposes to accomplish its plan through the

02 purchase and dedication of the Conway Ranch water right,

03 among other things.

04 Do you see where I am reading in your testimony?

05 MR. VORSTER: Yes.

06 MS. BELLOMO: My question is: Is it the Mono Lake

07 Committee's position that all of the Conway Ranch water

08 right should be dedicated to Mill Creek?

09 MR. VORSTER: I don't know. You have to ask the Mono

10 Lake Committee. I am taking their proposal as they gave it

11 to me and modeling it for the purpose of this testimony.

12 And my understanding is that it would be the purchase

13 and dedication of Conway Ranch water rights and, for the

14 purpose of the modeling, it was the entire amount.

15 MS. BELLOMO: Are you aware of any testimony that has

16 be presented by the Mono Lake Committee which would clarify

17 the question I just asked, as to whether the intention is to

18 dedicate all of the Conway water right to Mill Creek?

19 MR. VORSTER: I am not aware of any testimony in this

20 proceeding. The only testimony that Mono Lake Committee has

21 provided is what has been submitted by the panelists.

22 MS. BELLOMO: Mr. Harrison, you, and Mr. Stine?

23 MR. VORSTER: That's correct.

24 MS. BELLOMO: When you say the Mono Lake Committee

25 proposes to accomplish its goals through the purchase and

1176

01 dedication of the Conway Ranch water right, does the Mono

02 Lake Committee plan to purchase the Conway Ranch water right

03 itself?

04 MR. VORSTER: If I understand your question, do you

05 mean purchase the Conway Ranch water right separate from the

06 land; is that --

07 MS. BELLOMO: Well, let's start with that, then. Does

08 the Mono Lake Committee intend to purchase the Conway Ranch

09 with its water right?

10 MR. VORSTER: Actually, I don't know what the Mono Lake

11 Committee intends to do on any details or specifics on

12 that. Again, that is question for the Mono Lake Committee.

13 MS. BELLOMO: Does the Mono Lake Committee have any

14 position that they've communicated to you, as their expert

15 witness, regarding how they propose to have the Conway Ranch

16 water rights purchased?

17 MR. DODGE: Mr. Chairman, I would raise a question as

18 to the relevance of this line of questioning. I mean, the

19 proposal is the proposal.

20 CHAIRMAN CAFFREY: Ms. Bellomo.

21 MS. BELLOMO: I think it is entirely relevant to pursue

22 the feasibility of the proposal that is being put forth by

23 one of the parties here. And a major element of this

24 proposal is dedicating these water rights. I think I should

25 be allowed to probe whether the proponent of the proposal

1177

01 actually has any idea whether it is feasible or not.

02 CHAIRMAN CAFFREY: Well, the questions do seem somewhat

03 repetitious as what may be obvious from what is already in

04 the record and what is direct. But I am not going to make

05 that judgment. But I will observe that you're asking a

06 number of questions with regard to the intent of the Mono

07 Lake Committee, and Mr. Vorster has continuously, I think,

08 made it clear that he doesn't know how to answer specific

09 policy questions because he is just modeling what they asked

10 him to model. Maybe we can all stipulate to that.

11 Why don't you proceed and let's see where you are

12 taking us. We will hear a little bit more, if you've got

13 more.

14 MS. BELLOMO: The table that you provided in

15 Attachments 2a through 4f in your testimony set forth

16 historic data, which, as I recall, is from 1950s and 1960s;

17 is that correct?

18 MR. VORSTER: Yes. The dry year is 1960; the normal

19 year is 1951; and the wet year is 1952.

20 MS. BELLOMO: My first question for you is: Why did

21 you rely on data that is 30 and 40 years old?

22 MR. VORSTER: I relied on that data, not because it

23 was old, because I wanted to get represented hydrologies.

24 In other words, what was nature providing, what was the

25 runoff, and that was the main intent there. And also, to

1178

01 get what I consider representative years. One in ten dry

02 year, one in ten wet year, and a normal year. And those

03 years lent themselves to that representation.

04 In looking at what the flows and diversions in the

05 ditches were in those years and comparing it to what has

06 occurred recently, it was close enough that I felt, in terms

07 of diversions into the ditches, that it was fairly

08 representative.

09 Ideally, the next step would be to take some recent

10 years and do the same thing.

11 MS. BELLOMO: Can you tell me how you obtained such old

12 data?

13 MR. VORSTER: Yes. Data that I've had for 20 years

14 that was provided to me by combination of -- data that was

15 provided to me by the Department of Water and Power as well

16 as Southern California Edison. I document in my testimony

17 in Attachment 5 where all the data came from, where every

18 single line in these spreadsheets is documented as to what

19 it means and where the data is from.

20 MS. BELLOMO: Would you have any problem with sharing

21 that data with us on an informal basis, with the people from

22 Mono Basin Preservation?

23 MR. VORSTER: I would be more than happy to share all

24 data I have.

25 MS. BELLOMO: Thank you.

1179

01 You state on Page 4 that the Lundy Reservoir operations

02 under Edison's control are not significantly different than

03 what is shown for the years you have used prior to 1962.

04 My question is: What do you base this conclusion upon?

05 MR. VORSTER: That conclusion is based upon seeing how

06 the reservoir has been operated in the last ten years and

07 comparing it to how it was operated then.

08 I think today, currently, there may be a little bit

09 more reservoir control over the flows than what I showed in

10 my spreadsheet, but not significant at all.

11 MS. BELLOMO: Are you saying that the data you

12 obtained for the 1950s and 1960s, that based upon reviewing

13 that data you made assumptions about the reservoir

14 operations?

15 MR. VORSTER: No. The data is, again, on reservoir

16 impairment of the flow is what actually was done by -- at

17 the time it wasn't Southern California Edison. It was their

18 predecessor. And the impairment of the flows by the

19 reservoir and the diversions through the powerhouse, so on

20 and so forth, is very similar to how Edison today would

21 operate it. Again, there may be slightly more reservoir

22 control or more impairment today, but not significantly

23 different than what I show.

24 MS. BELLOMO: On Page 4, Point e, you state:

25 The historical use of the Mill Creek Return

1180

01 Ditch varied according to the need to

02 supplement the flows in Mill Creek for

03 diversion into the main Thompson Ditch.

04 Thus, the return ditch flows were greater in

05 dryer years when there was insufficient

06 natural Mill Creek flows to satisfy the main

07 Thompson diversion demands. (Reading.)

08 My question is: Did you get the information -- let me

09 back up.

10 The information that you relied upon for this

11 conclusion came from whom?

12 MR. VORSTER: That was records that I had originally

13 obtained from Los Angeles Department of Water and Power.

14 MS. BELLOMO: Do you know if that information was taken

15 from a gauging station?

16 MR. VORSTER: The information is taken from the current

17 meter site at the head of the return ditch.

18 MS. BELLOMO: Was the information for the time period

19 prior to 1962?

20 MR. VORSTER: Yes. I had information that goes back

21 to the '30s, all the way up to 1990s.

22 MS. BELLOMO: Again, on Page 4, Point g, you state

23 that:

24 Occasionally zero flow is discharged into

25 Wilson Creek because of unplanned

1181

01 interruptions in power plant operations.

02 (Reading.)

03 My question is: What is your source of information

04 about this?

05 MR. VORSTER: That is mainly talking to Southern

06 California Edison people over the years and looking at some

07 records that I have. So, it is a combination of both, very

08 occasional shutdowns.

09 MS. BELLOMO: Can you tell me when the last time that

10 has happened is?

11 MR. VORSTER: I can't recall the specific year. I

12 remember in talking to John Fredrickson, he was there and

13 observed what happened. I can't. It was some time, I

14 think, in the last ten years, 10 or 15 years.

15 MS. BELLOMO: Excuse me, I didn't mean to interrupt

16 you.

17 John Fredrickson is not an Edison employee, is he?

18 MR. VORSTER: No, he's not. I said it was in talking

19 to Edison employees and local residents.

20 MS. BELLOMO: Can you identify the Edison employee who

21 informed you that occasionally zero flow is discharged into

22 Wilson Creek because of unplanned interruptions?

23 MR. VORSTER: It probably was Bert Almond and his

24 predecessor whose name is escaping me. The hydrogapher,

25 chief hydrogapher, Dennis Osborn, who I initially had

1182

01 contact with. As I said, it was a very unusual

02 circumstance. Let's say there was a lightning strike and

03 there had to be -- the power plant had to shut down. Then

04 for a brief amount of time there could be no flow being

05 discharged from the power plant.

06 MS. BELLOMO: We are talking a very, very brief period

07 of time?

08 MR. VORSTER: Yes. I would -- a day or less.

09 MS. BELLOMO: As much as a full day is your testimony?

10 MR. VORSTER: I wouldn't want to testify to an exact

11 amount of time. It was a very brief time.

12 MS. BELLOMO: If I understood your testimony earlier,

13 if there was zero flow discharged into Wilson Creek, then

14 below Conway Ranch the creek would go dry, correct?

15 MR. VORSTER: That's correct.

16 MS. BELLOMO: If that were to occur, then the fish in

17 the creek, unfortunately, when it went dry, would die,

18 correct?

19 MR. VORSTER: If it was for a long enough period. If

20 it was a short enough period, there would be residual pools

21 that they would be able to survive in.

22 MS. BELLOMO: If they happen to be in pools at the time?

23 MR. VORSTER: Correct.

24 MS. BELLOMO: Are you aware of any Department of Fish

25 and Game investigation into these zero flow episodes?

1183

01 MR. VORSTER: On Wilson Creek?

02 MS. BELLOMO: Yes.

03 MR. VORSTER: I am not aware of.

04 MS. BELLOMO: On Page 5, you set forth what water

05 requirements for the Conway and Thompson Meadows and --

06 rather than me take the time to look through on Page 5, can

07 you refresh my recollection as to how much your water

08 requirement estimate is for the Thompson Meadow?

09 MR. VORSTER: Yeah. For the hundred acres that is

10 currently irrigated, is approximate acreage, the water

11 requirement is calculated by multiplying the acreage times

12 the consumptive use and doubling that, results in a gross

13 demand of 400 acre-feet, which apportioned over the five

14 month growing season, gives an average monthly application

15 of roughly 1.3 cfs.

16 MS. BELLOMO: So, is this a water requirement for both

17 Upper and Lower Thompson Meadows? And by Upper Thompson

18 Meadow I mean the portion of the meadow that is on the west

19 side of the highway, and by Lower Thompson Meadow I mean the

20 portion that is on the east side of the highway.

21 MR. VORSTER: No. This would be just for the Lower

22 Thompson Meadow, which is to the east of 395.

23 MS. BELLOMO: You don't provide for any water for

24 irrigation of Upper Thompson Meadow?

25 MR. VORSTER: That is correct.

1184

01 MS. BELLOMO: You did state on Page 2 that your

02 proposal is if there is sufficient irrigation water to

03 maintain the Simis and Thompson Rancho meadow and trees.

04 The Simis Meadow is adjacent to the Upper Thompson Meadow,

05 correct?

06 MR. VORSTER: Could you describe what you mean by

07 "adjacent"? I don't consider them -- they are close. They

08 are proximate, but they are not literally right next to each

09 other. They are very close to each other.

10 MS. BELLOMO: Well, you say that your proposal is for

11 sufficient water to maintain Simis and Thompson Ranch meadow

12 and trees. Are you referring to sufficient water to

13 maintain the Lower Thompson Meadow on the east side of the

14 highway, but not enough to maintain Thompson Meadow on the

15 west side of the highway?

16 MR. VORSTER: That is correct. Lower Thompson Ranch

17 is, by far, the larger, very visible meadow. The Upper

18 Thompson is much smaller and not visible from Highway 395,

19 or barely visible.

20 MS. BELLOMO: How large is the Simis Meadow?

21 MR. VORSTER: What I refer to as the Simis Meadow, let

22 me -- Simis Meadow, unfortunately, would be just off the

23 Exhibit R-SLC/DPR-424, would be just off the left-hand

24 margin where Upper Thompson and Lower Thompson Ditch coming

25 together. And it is -- the meadow itself is probably, if I

1185

01 remember correctly, I am going to say about 25 acres, and

02 that is based upon what Dave Marquart, who is the ranch

03 manager, told me. So, it is a very small meadow.

04 MS. BELLOMO: That property belongs to Jan Simis?

05 MR. VORSTER: That's correct.

06 MS. BELLOMO: I recall earlier in your testimony, I

07 think in your direct testimony, you stated that Jan Simis

08 has, in your words I think you said, has a minor 1 cfs water

09 right?

10 MR. VORSTER: 1.8 cfs.

11 MS. BELLOMO: So, Jan Simis has a 1.8 cfs water right?

12 MR. VORSTER: That's correct.

13 MS. BELLOMO: You would agree -- let me restate that.

14 Are you aware that Jan Simis' ranch is one of the

15 original historic ranches in the area?

16 MR. VORSTER: That is my understanding.

17 MS. BELLOMO: You characterize Jan Simis' water right

18 as being a minor water right, and you have testified that

19 she has 1.8 cfs. Would you consider that the 1.3 cfs, then,

20 that you would allocate to Thompson Meadows is also a minor

21 amount of water?

22 MR. VORSTER: Yes. Relative to the other water rights,

23 dWP, Conway, and Forest Service, the 1.8 cfs is a minor

24 amount.

25 MS. BELLOMO: On Page 6 you refer to infiltration

1186

01 losses from the main Thompson Ditch, and you propose using a

02 closed pipeline or, and I quote from you, "some other manner

03 to reduce those losses."

04 My question is: What are you referring to when you say

05 "some other manner to reduce infiltration losses"?

06 MR. VORSTER: You can line the ditches, for example,

07 keep it as an open ditch.

08 MS. BELLOMO: Did you measure infiltration losses?

09 MR. VORSTER: No. Again, I have not -- when you -- the

10 term "measurement" to me means I go out there with a current

11 meter. I observed them. I have observed losses in the

12 ditches in the north part of the Mono Basin. Looking at

13 what the water was at the head and at the downstream end,

14 and I have been able, through visual observations, to see

15 what the loss is. The losses are so high that you can tell

16 through visual observation how much loss there is.

17 MS. BELLOMO: Have you attempted to estimate the

18 amount of cfs that is lost?

19 MR. VORSTER: For example -- yes. I have estimated the

20 loss on the Mill Creek Return Ditch to be --

21 MS. BELLOMO: Excuse me, I'm asking about your

22 testimony about the Thompson, main Thompson Ditch.

23 MR. VORSTER: Yes. For example, in the past couple of

24 years, if I remember correctly, about 8 cfs was being

25 diverted into the main Thompson at Mill Creek. And by the

1187

01 time it was discharging into DeChambeau Creek, it was, I am

02 going to guess, about 5 cfs. I think there may be some

03 measurements of that in the Mill Creek Stream Evaluation

04 Report issued by the Department of Fish and Game.

05 MS. BELLOMO: Would you agree that those infiltration

06 losses help sustain riparian and meadow habitat, if there is

07 meadow, along the ditch in the area where there is

08 infiltration loss? Would you agree that the infiltration

09 losses help to sustain the riparian and meadow habitat?

10 MR. VORSTER: That could occur that the infiltration

11 -- along those ditches there is some riparian habitat.

12 MS. BELLOMO: Do you know if there are any Willow Fly

13 Catchers in the habitat along the main Thompson Ditch?

14 MS. BELLOMO: I am not aware.

15 MS. BELLOMO: You don't know?

16 MR. VORSTER: I don't know.

17 MS. BELLOMO: You would agree that wildlife can't drink

18 from a pipeline that is substituted for a ditch, wouldn't

19 you?

20 MR. VORSTER: I agree.

21 MS. BELLOMO: Have you reviewed any studies of wildlife

22 in the area of the main Thompson Ditch?

23 MR. VORSTER: No.

24 MS. BELLOMO: Do you know who has done the irrigation

25 on Thompson, the Upper and Lower Thompson Meadow in the past

1188

01 ten years?

02 MR. VORSTER: My understanding is that the current

03 operator, manager of the lease, is a gentleman named Paul

04 Anderson. I don't think he is the owner of the herd. Paul

05 Anderson is a name that has been given to me as someone who

06 has the keys, in fact, to the diversion ditches and, thus,

07 has some authority.

08 MS. BELLOMO: Is it your understanding that for, we

09 will say, the past ten years, the sheep company and their

10 employees that have the lease on Upper Thompson Lower Ranch

11 have been responsible for doing the irrigating?

12 MR. VORSTER: I think that is right, yes.

13 MS. BELLOMO: I assume you talked to Paul Anderson

14 about his irrigation techniques on the Thompson Meadows,

15 then?

16 MR. VORSTER: I pride myself on being able to talk to

17 everyone. I never talked to Paul Anderson, so I am

18 frustrated.

19 MR. DODGE: I think the record should reflect a

20 historic moment in the Mono Lake proceedings. Someone has

21 refused to talk to Mr. Vorster.

22 MR. VORSTER: I haven't tried to talk him.

23 CHAIRMAN CAFFREY: And I might add, someone with a set

24 of keys. The sign of authority around the Water Board.

25 MR. DODGE: That seems to be getting to the water.

1189

01 MS. BELLOMO: I assume that you have talked to Candido

02 Caldedilla, who is an extremely friendly man, however, have

03 you not?

04 MR. VORSTER: I have not talked to -- I didn't catch

05 the name. No, I have not talked to any of the people who

06 have the leases on Thompson, the Thompson Meadow.

07 MS. BELLOMO: And you haven't talked to any of the men

08 who do irrigation out there?

09 MR. VORSTER: The only person I talked to who has done

10 irrigation would John Pelichowski.

11 MS. BELLOMO: We are talking about Thompson Meadows

12 right now.

13 MR. VORSTER: Right. John Pelichowski was the water

14 master, so when he was in the area, he actually diverted the

15 water from Mill Creek into the Thompson Ditches.

16 MS. BELLOMO: He did not do the irrigation on Thompson

17 Ranches?

18 MR. VORSTER: No, he did not.

19 MR. FRINK: Excuse me, I wonder if we could have the

20 spelling of both the names of the last individuals?

21 MS. BELLOMO: Mr. Vorster, are you familiar with the

22 Mattly Meadows, the site of the old Mattly Ranch, which lies

23 to the northeast of the Lundy Powerhouse and above 395?

24 MR. VORSTER: Yes.

25 MS. BELLOMO: Does the Mono Lake Committee proposal

1190

01 provide any water for irrigation to sustain this old ranch

02 meadow?

03 MR. VORSTER: As I currently understand the proposal,

04 no, it does not. However, I do think that the meadow would

05 stay green just from natural high water table in the area,

06 but does not receive any supplemental water for meadow

07 grass.

08 MS. BELLOMO: Your testimony is that the Mattly Meadow

09 is not irrigated?

10 MR. VORSTER: No. I said it would -- if it did not

11 receive any water whatsoever, there would be -- grass in the

12 area would remain. There would not be a conversion of the

13 entire area to sagebrush.

14 MS. BELLOMO: Have you done an analysis of the Mattly

15 Meadow soil types?

16 MR. VORSTER: I have not. There is historical evidence

17 that, I think, other people will testify to.

18 MR. BIRMINGHAM: Excuse me, Mr. Caffrey.

19 CHAIRMAN CAFFREY: Yes, Mr. Birmingham.

20 MR. BIRMINGHAM: Mr. Vorster has been doing so well at

21 answering the questions. But the last --

22 CHAIRMAN CAFFREY: I am glad you approve.

23 MR. BIRMINGHAM: -- the last two questions he is

24 starting to revert to his habit of responding with more

25 information than is actually called for by the question.

1191

01 CHAIRMAN CAFFREY: I will remind the witness again.

02 MR. VORSTER: I apologize. I strayed.

03 CHAIRMAN CAFFREY: No need to apologize. We understand

04 your expertise and your vast knowledge of the area, but we

05 do need to stay on point, if we can.

06 Thank you, sir.

07 MS. BELLOMO: On Page 6, in the top paragraph, you

08 refer to the meadow south of Wilson Creek as sitting in a,

09 you refer to as a, quote-unquote, bowl of high groundwater

10 levels.

11 And my first question is: What studies did you do to

12 verify this?

13 MR. VORSTER: For the Conway Ranch EIR that was

14 prepared in the late '80s there were a number of

15 supplemental studies, including groundwater studies,

16 geotechnical studies, that discuss the groundwater

17 conditions in that area. And I think those reports refer to

18 it as a bowl, as a -- that the ridge just south of the bowl

19 acts to confine the groundwater. Groundwater barrier,

20 actually.

21 MS. BELLOMO: Have you done anything to determine what

22 the recharge source for this alleged high groundwater is?

23 MR. VORSTER: Yes. The recharge would, under natural

24 conditions, occur from all of the runoff from the mountains

25 above the Conway Ranch area, which, when the snow melts and

1192

01 runs off, as soon as it hits the lower gradient land in the

02 meadow area, the water gets drunk up. It is very permeable

03 soil.

04 MS. BELLOMO: Have you done any other analysis to

05 determine if there is any other source of recharge for that

06 area?

07 MR. VORSTER: In the bowl area?

08 MS. BELLOMO: Yes.

09 MR. VORSTER: It's possible that the unconfined

10 aquifer, the top most part of that bowl area, would be

11 recharged by excess flood irrigation.

12 MS. BELLOMO: In what location?

13 MR. VORSTER: In the bowl itself.

14 MS. BELLOMO: Isn't it possible that the -- let me back

15 up for a moment, please.

16 Are you aware that 10 to 12 cfs of water are spread on

17 Mattly Ranch to irrigate that ranch?

18 MR. VORSTER: Currently I think 10 cfs is diverted in

19 Upper Conway Ditch. Since that water does not go over to

20 Conway Ranch itself, it must all end up in Mattly, which I

21 would point out, as the water rights compilation shows, is

22 far in excess of its water rights.

23 MS. BELLOMO: Is it your testimony that the 10 to 12

24 cfs of water -- let me back up, so as not to get into

25 dispute with you.

1193

01 Is it your testimony that the water that you just

02 testified goes into Conway Ditch over to Mattly Meadows, has

03 nothing to do with groundwater levels on Conway Ranch?

04 MR. VORSTER: I did not say that, no. If you want to

05 ask me a question --

06 MS. BELLOMO: Would you agree that it is possible that

07 the water that is spread on Mattly Meadow could be

08 contributing to the recharge of the bowl that you refer to

09 on Conway Ranch?

10 MR. VORSTER: I don't think so. And I would allow Dr.

11 Stine to also answer that question because we have looked at

12 that and --

13 DR. STINE: I will answer that question.

14 MS. BELLOMO: I am very limited on time, so I don't

15 want to get into Dr. Stine on this point.

16 MR. VORSTER: Here is Mattly Ranch, right here. Here

17 is the bowl area. The general direction of flow is in a

18 southeasterly direction. I find it, both from an

19 elevational standpoint and just the direction of flow, it

20 would be pretty difficult for water applied to here, to get

21 over to here.

22 I am sorry. I am saying here, I am referring to the

23 Mill Creek and Wilson Creek vicinity map, which I don't see

24 has a label, exhibit label, on it. But I am referring to

25 Mattly Ranch, which is to the southwest of the bowl of

1194

01 Conway Ranch. And given the general direction of flow is

02 from the northwest to the southeast, I don't think very much

03 recharge of the bowl would occur from water applied on

04 Mattly Ranch.

05 CHAIRMAN CAFFREY: Mr. Canaday.

06 MR. CANADAY: The map that Mr. Vorster is referring to

07 is LADWP 65.

08 CHAIRMAN CAFFREY: Thank you, sir.

09 MS. BELLOMO: What is your source of being certain of

10 the direction of flow?

11 MR. VORSTER: Combination. It would be from the

12 surface topography. It would be from reading geological

13 reports and also consulting with the experts, such as Dr.

14 Stine.

15 MS. BELLOMO: You say that the meadow south of Wilson

16 Creek could, in theory, be, in theory quote-unquote,

17 supplied by excess supply tailwater.

18 My question is: When you say tailwater, are you

19 referring to water coming out of powerhouse?

20 MR. VORSTER: No. I am referring to the excess

21 irrigation, irrigation water that is applied to the Conway

22 Ranch north of Wilson Creek that flows off the land.

23 MS. BELLOMO: When you say "in theory," I take it that

24 you haven't studied that?

25 MR. VORSTER: No. That is correct; I have not studied

1195

01 it.

02 MS. BELLOMO: Now with regard to Thompson Meadow and

03 your evaluation of the water irrigation requirements at

04 Thompson Meadow, you are not a soil expert, are you?

05 MR. VORSTER: I am not a soil expert.

06 MS. BELLOMO: So, I assume you didn't do any soil study

07 yourself?

08 MR. VORSTER: I did not do any soil study. I did do

09 extensive research on irrigation water requirements for my

10 master's thesis and can testify to that.

11 MS. BELLOMO: Through that extensive research, I assume

12 that you learned that it is important to know the soil type

13 and to explore the soil type in an area before you reach any

14 conclusion about how much water is needed to irrigation it,

15 right?

16 MR. VORSTER: Absolutely, you would want to do that.

17 MS. BELLOMO: You did not do that yet?

18 MR. VORSTER: I did not do that. As I said, my

19 estimates are rough estimates that are based upon the

20 consumptive use requirements of the meadow grass in the area.

21 MS. BELLOMO: Your estimates could be wildly wrong if

22 the soil types turned out to be, for instance, of a very

23 high permeability, correct?

24 MR. DODGE: Objection. Ambiguous. I don't know what

25 a wildly wrong thing is.

1196

01 CHAIRMAN CAFFREY: Would you rephrase the question, Ms.

02 Bellomo?

03 MS. BELLOMO: Your estimates could turn out to be

04 inaccurate if there was -- if it turned out that there was

05 high soil permeability, correct?

06 MR. VORSTER: Absolutely. Could be inaccurate. If it

07 was inaccurate by a hundred percent, then the water

08 requirement would be 2.6 cfs. Let's just assume that they

09 are inaccurate, that we double what I estimated, would be

10 2.6 cfs.

11 MS. BELLOMO: Can we assume that it might be 400

12 percent inaccurate?

13 MR. VORSTER: I would find that hard to believe because

14 that would be far in excess of the irrigation water

15 requirements in all the other lands in that area. I

16 consulted a number of studies and did my own measurements of

17 evapotranspiration requirements and that would be -- well,

18 it wouldn't be a wise use of water, if the irrigation duty

19 was ten feet per acre is what you are suggesting.

20 MS. BELLOMO: Why would that not be a wise use of water

21 if that is what the irrigation requirement was?

22 MR. VORSTER: Well, we are now venturing into a kind of

23 policy opinion. But, I think, given that water is limited

24 there, that we just have to decide whether applying ten feet

25 per acre on land is a wise use of water.

1197

01 Excuse me, I think I said ten feet per acre. If it was

02 four times the amount that I estimated, it would be 16 feet

03 per acre.

04 MS. BELLOMO: Am I correct in understanding that you

05 didn't go to the Natural Resource Conservation Service to

06 obtain data regarding the soil types in the Thompson Meadow

07 area?

08 MR. VORSTER: I did not do any consultation with

09 anybody about soil types in the area.

10 MS. BELLOMO: You testified on Page 6 of your

11 testimony, at Footnote 6, about a difference in your

12 estimate of the acre served by irrigation at the Thompson

13 and the Los Angeles Department of Water and Power figures.

14 See where I am referring?

15 MR. VORSTER: Yes, I do.

16 MS. BELLOMO: You say that suspect that the disparity

17 in the numbers is because their lands are no longer

18 irrigated to the east of existing Thompson Meadow. Is that

19 correct?

20 MR. VORSTER: Yes, that is what I say there. I am

21 speculating. I asked the Department of Water and Power over

22 a month ago to what their current estimate of irrigated

23 acreage is, and I haven't got an answer yet. But the 90

24 acres, as I state in the footnote, is from measurements that

25 Scott Stine did off of aerial photographs that I have right

1198

01 here.

02 MS. BELLOMO: We are talking about a difference of 80

03 acres?

04 MR. VORSTER: The 170 acres that I have from

05 Department of Water and Power documents is from some

06 lease-type documents. As I said, I asked them -- I made

07 inquiries as to what the current irrigated acreage is, but I

08 haven't got an answer yet. But I think the question of what

09 the exact amount of irrigate acreage is could be determined,

10 one, either by asking the Department of Water and Power or,

11 I think, measuring it off the aerial photograph is a good

12 way to get a rough estimate.

13 MS. BELLOMO: When you look at the aerial photographs,

14 I am not familiar with that kind of photo, so I am asking

15 you perhaps -- and it is not a question. When you look at

16 that kind of aerial photograph, how can you tell if an area

17 isn't irrigated?

18 MR. VORSTER: You can tell by the color, one way. You

19 can see where xerophytic vegetation is in relation to the

20 greener, irrigated area. If you want to know exactly how

21 Dr. Stine did it, I would suggest you ask Dr. Stine.

22 MS. BELLOMO: I am trying to determine, basically, is

23 what you see on the photograph an area where there is

24 vegetation and an area where there is not, or a type of

25 vegetation that uses water?

1199

01 MR. VORSTER: That requires supplemental water, what we

02 call phreatophytic vegetation. You can tell by looking at

03 an aerial photograph what areas would be getting either

04 supplement irrigation water or spring water, some water in

05 excess of the their natural -- the water requirement that

06 vegetation that exists naturally in the area requires.

07 MS. BELLOMO: In the areas that you testify in your

08 Footnote 6 no longer receive irrigation, would you agree

09 those are reverted to sagebrush?

10 MR. VORSTER: As I said, it is possible they have. I

11 haven't gone out there to specifically look at those areas

12 that were irrigated before and are no longer irrigated

13 today. I have heard from local residents there have been

14 reversion to sagebrush.

15 MS. BELLOMO: Turning to Page 6, in the middle of the

16 page, starting with the paragraph, "The 1.3 cfs requirement

17 can come from several sources," you have an a) and a b).

18 In b) you state a source could be runoff from Upper

19 DeChambeau Creek that sometimes is available in the peak

20 snow melt period.

21 And my question is: Are you saying that Thompson

22 Meadow should be irrigated from DeChambeau Creek water?

23 MR. VORSTER: Currently Thompson Meadow is irrigated

24 with a combination of Mill Creek and DeChambeau Creek water

25 because -- if I can refer --

1200

01 MS. BELLOMO: I am concerned you are going to use a lot

02 of my time. My question is: Are you saying that Thompson

03 should be allowed to take water from DeChambeau Creek, not

04 its Mill Creek water right?

05 MR. VORSTER: Thompson currently does take water from

06 DeChambeau.

07 MS. BELLOMO: You approve of that; you think that is

08 okay?

09 MR. VORSTER: It is not something that I determine.

10 That is how the hydrogaphy, the plumbing system in the area

11 is; the water from Mill Creek goes into DeChambeau Creek and

12 then DeChambeau Creek goes to Thompson Meadow.

13 MS. BELLOMO: Let me rephrase that question, then.

14 My question is: Are you saying in point b) that

15 Thompson Meadow should be irrigated from water from

16 DeChambeau Creek in excess of amounts that are put into Mill

17 Creek under the Thompson Meadow water right?

18 MR. BIRMINGHAM: I am going to object to the question

19 on the grounds it ambiguous.

20 CHAIRMAN CAFFREY: I am not sure I understood it, to be

21 quite honest, but I don't want to disallow you from asking.

22 Could you try it again, Ms. Bellomo?

23 MS. BELLOMO: To clarify for purpose of this Board,

24 DeChambeau Creek is the conduit for water from Mill Creek

25 that is used for irrigation on Lower Thompson Meadow,

1201

01 correct?

02 MR. VORSTER: That is true. DeChambeau Creek runs

03 along the western edge of Thompson Meadow. It basically

04 withers into Thompson Meadow area.

05 MS. BELLOMO: You are saying in your testimony that

06 Thompson Meadow needs 1.3 cfs of water for irrigation,

07 correct?

08 MR. VORSTER: Rough estimate, correct.

09 MS. BELLOMO: If 1.3 cfs of water is put into

10 DeChambeau Creek from Mill Creek in order to get it down, to

11 transport it down to Lower Thompson Meadow, are you saying

12 in point b) that Thompson Meadow, the irrigator should be

13 allowed to use more than the 1.3 cfs of water to irrigate

14 Thompson Meadow.

15 MR. VORSTER: No, that is not what I am saying. I am

16 just suggesting if you need to fulfill this 1.3 cfs

17 requirement, or whatever it is, there are a number of

18 sources that you can look to. In peak snow melt period

19 there is water in Upper DeChambeau Creek that might be

20 available. Should be looked at as a possible source of

21 supply. I do know that there is an interest by some people

22 to maintain a year-round flow or continuous flow of water in

23 DeChambeau Creek through the Thompson Meadow.

24 MS. BELLOMO: You are saying that at times it wouldn't

25 -- rather than put 1.3 cfs of Mill Creek water into

1202

01 DeChambeau and then take it out on Lower Thompson, that that

02 1.3 cfs could come from the DeChambeau water itself,

03 DeChambeau Creek water itself?

04 MR. VORSTER: It is one thing you might want to look

05 at.

06 MS. BELLOMO: Currently the Department of Water and

07 Power doesn't have the water right to water from DeChambeau

08 Creek; is that correct?

09 MR. VORSTER: I don't know. The Thompson Meadow is

10 riparian to DeChambeau Creek.

11 MS. BELLOMO: Does the Mono Lake Committee have an

12 opinion as to whether there should be a minimum flow in

13 DeChambeau Creek down to the lake at all times?

14 MR. VORSTER: I don't know.

15 MS. BELLOMO: Do you have an opinion?

16 MR. VORSTER: Yes.

17 MS. BELLOMO: What is your opinion?

18 MR. VORSTER: Yes. It would be nice, although it is

19 the Thompson -- excuse me, the DeChambeau Creek Channel

20 through Thompson Ranch is not very well defined.

21 Occasionally, water flows in DeChambeau Creek below Thompson

22 Ranch from irrigation tailwater and flows through the County

23 Park and down to Mono Lake. In order to provide a

24 year-round flow into DeChambeau Creek, you have to restore

25 the channel and also look at whether, under natural

1203

01 conditions, whether year-round flow through that reach would

02 occur.

03 MS. BELLOMO: So you don't -- am I understanding you

04 correctly, that you don't know whether DeChambeau Creek has

05 a year-round flow down to the lake?

06 MR. VORSTER: It is possible in the driest --

07 MR. DODGE: I would object to this line of questioning

08 on ground of relevance.

09 MS. BELLOMO: I think it is extremely relevant,

10 Chairman Caffrey, because the recommendation involves using

11 DeChambeau Creek water to irrigate Thompson Meadow, and this

12 would impact DeChambeau Creek.

13 CHAIRMAN CAFFREY: This is kind of a difficult area

14 because we talked about this at the beginning of the entire

15 hearing procedure, how much detail are we going to get into

16 and all this. I am inclined to let you go ahead. You have

17 less than nine minutes to go to complete your

18 cross-examination.

19 MS. BELLOMO: I am afraid that I am going to have to

20 ask you for a little extra time for Mr. Vorster.

21 CHAIRMAN CAFFREY: Perhaps we can do that this

22 afternoon. You can give me a showing when you get to the

23 end of your time, and we will make a judgment then.

24 Why don't you proceed.

25 MR. VORSTER: I want to clarify. As I said in my

1204

01 testimony, I am looking -- I am recommending that several

02 different sources of water should be -- could be used to

03 irrigate Thompson Meadow. I am not saying -- I am not

04 making a recommendation that Upper DeChambeau Creek water

05 should be done. I am saying it should be looked at,

06 considered as a possible source of water. It is currently

07 -- I will just leave it at that.

08 MS. BELLOMO: You state on Page 4 that you have

09 observed diversions into the Upper Thompson Ditch in recent

10 years, and that the water redirected back to property along

11 Mill Creek.

12 To whose property was the water redirected?

13 MR. VORSTER: Page?

14 MS. BELLOMO: On Page 4.

15 MS. BELLOMO: Point c.

16 MR. VORSTER: Point c. You are referring to -- can you

17 repeat your question, please?

18 MS. BELLOMO: I am asking to whose property was the

19 water, the Mill Creek water, redirected.

20 MR. VORSTER: The water that I observed in Upper

21 Thompson Ditch that I saw redirected?

22 MS. BELLOMO: Yes.

23 MR. VORSTER: I don't know who the names of the people

24 are.

25 MS. BELLOMO: How many times did you observe that?

1205

01 MR. VORSTER: I think I saw it twice. But from talking

02 to Dave Marquart, it happened for a while.

03 MS. BELLOMO: You're acquainted with Jan Simis' water

04 right which you testified to.

05 And my question is: What do you base your statement on

06 that Jan Simis does not use her Mill Creek water right?

07 MR. VORSTER: As I stated in my testimony, that in the

08 last couple of years the water that was diverted in Upper

09 Thompson Ditch did not go over to Jan Simis' land. It was

10 either redirected or the water just wasn't diverted over

11 there. She relied on -- her property relied entirely on

12 DeChambeau Creek water.

13 MS. BELLOMO: Were you there looking on a daily basis?

14 MR. VORSTER: No. I took a tour of the area with Dave

15 Marquart, who is the ranch manager, and he briefed me as to

16 what -- how the water was managed the last couple of years?

17 MS. BELLOMO: Are you saying Dave Marquart informed you

18 that Jan Simis had not used her water rights, her Mill Creek

19 water rights for several years.

20 MR. VORSTER: I think that he said something to that

21 effect, that the last couple of years they had a hard time

22 getting water over there because of the problem that people

23 had been redirecting the water. To the extent that he was

24 able to stop that from happening, I assumed he can then

25 bring water over to his property. In many years there is

1206

01 enough water in DeChambeau Creek. He is able to irrigate

02 his small amount of meadow with DeChambeau Creek.

03 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me for

04 interrupting. We have a request for the spelling of the

05 name Marquart.

06 MS. BELLOMO: I think it is M-a-r-q-u-a-r-t.

07 CHAIRMAN CAFFREY: Thank you.

08 Please proceed.

09 MS. BELLOMO: Are you suggesting that because Jan

10 Simis, in your testimony, has not used her Mill Creek water

11 right recently, that she should lose her water right?

12 MR. VORSTER: Absolutely not.

13 MS. BELLOMO: Then what is the relevance of whether she

14 has been using it or not?

15 MR. VORSTER: Because in talking to Dave Marquart, who

16 has talked to Jan Simis, we talked about the possibility of

17 her relying upon her DeChambeau Creek water to irrigate her

18 meadow and taking her right and making it available for

19 Thompson Meadow and for DeChambeau Creek itself.

20 MS. BELLOMO: So, she is considering dedicating her 1.8

21 cfs to Mill Creek?

22 MR. VORSTER: No. She hasn't stated that. I haven't

23 talked to her directly. I have discussed the possibility

24 with Dave Marquart that the water that she has a right to

25 from Mill Creek could be used for Thompson Ranch as well as

1207

01 keeping a flow in DeChambeau Creek.

02 MS. BELLOMO: Does Jan Simis have a water right to

03 DeChambeau Creek water?

04 MR. VORSTER: Yes, she does. As far as I know, she

05 does. Dave Marquart informed me she does.

06 MS. BELLOMO: How much is her water right?

07 MR. VORSTER: I am not sure. Dave looked at the

08 documents, and it was hard for him to discern the exact

09 amount.

10 MS. BELLOMO: Do you know if it approaches in the

11 vicinity of 1.8 cfs?

12 MR. VORSTER: No. It is less than that, clearly less

13 than that.

14 MS. BELLOMO: Would she be asking -- if she were -- in

15 your discussions with Dave Marquart, were you discussing

16 giving up her 1.8 cfs water right, but getting some

17 additional water right to DeChambeau Creek to make up for

18 that loss?

19 MR. VORSTER: That possibility came up, but to the

20 extent that she doesn't need to use that amount of water for

21 her property, it wouldn't be necessary.

22 MS. BELLOMO: On Page 6, you state in the Mill Creek --

23 In the Mill-Wilson spreadsheets I assume

24 the historic diversions to the

25 Sylvester-McPhersen Ditch, which

1208

01 averaged 1.8 cfs for the three-year

02 types, would continue to be diverted

03 from Mill Creek because it is equivalent

04 to the supply needed to maintain the

05 Thompson Meadow and leave a little water

06 to flow down Lower DeChambeau Creek through

07 the Mono County Park to Mono Lake.

08 (Reading.)

09 Do you see where I am reading?

10 MR. VORSTER: Uh-huh.

11 MS. BELLOMO: And then you state:

12 It is the amount of the diversion, not who

13 the right belongs to or whether it is being

14 exercised that matters. (Reading.)

15 And this is what intrigues me. Are you saying that a

16 person should be able to use water from a creek whether or

17 not they have a right to it?

18 MR. VORSTER: No.

19 MS. BELLOMO: What exactly did you mean by that

20 statement?

21 MR. VORSTER: I assumed in that statement that Jan

22 Simis' property has a water right to both Mill Creek and

23 DeChambeau. And that, what is important, aren't the water

24 rights. What is important is -- again, we have to keep in

25 mind what we are trying to do here, which is to see if we

1209

01 can maintain the Thompson Meadow, see that we can maintain

02 the Simis meadow and trees, and maximize the return of water

03 to Mill Creek. That is the goal here, in my opinion.

04 And to the extent that everyone does have a water

05 right, and the water is getting commingled anyway, it is not

06 the water right that is important; it is the amount of water

07 necessary to achieve those ends that I have mentioned.

08 MS. BELLOMO: Are you aware that below the County Park,

09 below Lower Thompson Meadow, there is a marsh area that is

10 maintained by the State Park Department?

11 MR. VORSTER: The State Department Park does not

12 maintain the marsh.

13 MS. BELLOMO: I stand corrected. The area that is

14 owned by the State Park or the State Lands Commission,

15 rather?

16 MR. VORSTER: Yeah. I am not sure exactly who the

17 landowner is. DWP owns the land above the County Park, and

18 since they are a private landowner, I guess, below the

19 County Park would belong to the State of California.

20 MS. BELLOMO: Putting aside either question, you are

21 familiar with that marsh?

22 MR. VORSTER: I am familiar with that general area,

23 yes.

24 MS. BELLOMO: You are aware that DeChambeau Creek flows

25 through that marsh area down to the lake?

1210

01 MR. VORSTER: Yes.

02 MS. BELLOMO: Do you think it would be important to

03 determine the effects on that marsh area before allowing Jan

04 Simis to utilize water off DeChambeau Creek that could

05 impact the flow down to the lake?

06 MR. VORSTER: I just want to reiterate, she is

07 currently using water mainly off DeChambeau Creek, so it

08 really wouldn't be any change.

09 MS. BELLOMO: Do you know how much she is using?

10 MR. VORSTER: No.

11 MS. BELLOMO: How much are you proposing that she

12 should be allowed to use in the future if she gives up her

13 1.8 cfs?

14 MR. VORSTER: I am proposing that she be allowed to use

15 whatever is necessary to maintain the meadow and the trees

16 on her property.

17 MS. BELLOMO: Are you proposing that regardless of

18 whether that resulted in the DeChambeau Creek not having

19 flow down to the lake so that the creek couldn't flow

20 through the marsh area?

21 MR. VORSTER: I know that Jan is interested in

22 maintaining a flow in DeChambeau Creek, and she is

23 interested in making her irrigation as efficient as possible

24 to do that.

25 MS. BELLOMO: Are you interested in making the flow

1211

01 into DeChambeau Creek through the marsh below the County

02 Park?

03 MR. VORSTER: Am I interested?

04 MR. BELLOMO: Yes.

05 MR. VORSTER: Sure. I can tell you that the reach

06 below the County Park is a gaining reach because of

07 accretion and spring flow, under natural conditions.

08 MS. BELLOMO: I assume you have done studies of that?

09 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me. You have

10 exhausted the hour, that guidelines that we have for

11 cross-examination.

12 How much more time do you think you need?

13 MS. BELLOMO: I think I need approximately 15 more

14 minutes, Chairman Caffrey.

15 CHAIRMAN CAFFREY: I am a little concerned about that

16 because I fear now we are getting into a level of

17 specificity. If you recall my instruction that was in our

18 written documents and also what I have reiterated a couple

19 times, that if we are getting into a lot of detail about

20 water rights here, that I think we should have to repeat in

21 another proceeding. If this proposal to water Mill Creek

22 was going to go forward, it would require a water right's

23 proceeding and an EIR, and I suspect that all this level of

24 questioning would have to be repeated.

25 Is that not the case, Mr. Frink?

1212

01 MR. FRINK: I believe it is, Mr. Chairman.

02 CHAIRMAN CAFFREY: I am reluctant to give you more

03 time -- you have used the entire hour and you will have

04 another opportunity to do this if this goes forward. That

05 is what concerns me. I will give you five more minutes if

06 you can complete five more, and then we will take a break

07 for lunch. I really don't want to go beyond that.

08 MS. BELLOMO: Chairman Caffrey, I would just like to

09 put on the record that this is one of the witnesses that is

10 of most importance to the People from Mono Basin

11 Preservation and the community in general, that I am asking

12 questions that have been provided to me by many people from

13 the local community, that we have spent three days, and now

14 on our fourth day here, and spent very little hearing time

15 asking questions of any witnesses. And I would ask your

16 indulgence to allow me to ask these questions, and if at any

17 particular point you find a particular question to be beyond

18 the scope of what you think I should be asking, that you cut

19 me off.

20 CHAIRMAN CAFFREY: What I am asking for is your

21 cooperation. Because if we do it on micro basis, question

22 by question, these are gray areas. The point that I want to

23 focus on is, though, that this is probably all going to have

24 to be repeated. And you will have that opportunity. I am

25 just interested in proceeding with dispatch, so that we can

1213

01 get through all this.

02 MS. BELLOMO: The problem is that I haven't touched on

03 certain areas of Mr. Vorster's testimony. So I am not

04 intending to spend the next 15 minutes repeating the

05 subjects I have already covered. I am going through his

06 testimony and maybe in more detail than you would have

07 wished.

08 CHAIRMAN CAFFREY: I will give you from now till noon

09 to stay on point, and that will have to be the amount of

10 time that you are allowed for the cross-examination of these

11 witnesses.

12 MS. BELLOMO: So, for the record, I am being allowed an

13 extra seven minutes?

14 CHAIRMAN CAFFREY: Yes. I think that is about seven

15 and a half minutes, if my eyes are serving me correctly.

16 MS. BELLOMO: Thank you very much.

17 Did you do any studies, Mr. Vorster, to determine what

18 the effects of reducing irrigation to 1.3 cfs would be on

19 the land below Thompson Ranch at the County Park and

20 vegetation in the marsh below the ranch?

21 MR. VORSTER: No, I have not.

22 MS. BELLOMO: Am I correct that you didn't do any

23 studies to determine the source of the water supply and the

24 vegetation below the County Road below Thompson Meadow? Did

25 you do any studies?

1214

01 MR. VORSTER: Yes, in a broad sense. When I was doing

02 my master's thesis, that was one of the things I looked

03 at. I look at -- I mapped all the phreatophytic vegetation

04 around the lake shore to determine what the water loss was.

05 So, I have studied that area, and looked at what the natural

06 supply of water would be and what is supplemental. I tried

07 to make that distinction. That area you are talking about

08 has a large component of natural spring flow.

09 MS. BELLOMO: The whole area?

10 MR. VORSTER: Yeah, the area below the County Park that

11 you are referring to has a lot of springs.

12 MS. BELLOMO: Actually, my question was broader than

13 that. As to whether you have determined the source of water

14 supply and the vegetation along the entire length of the

15 County Road below Thompson Meadow.

16 MR. VORSTER: Not in a specific sense, but more in a

17 general sense.

18 MS. BELLOMO: Would you agree that, at times, as much

19 as 10 to 15 cfs of water is spread on Lower Thompson Meadow?

20 MR. VORSTER: I know 10 to 15 cfs was diverted from

21 Mill Creek. Whether that amount got to Thompson Meadow, I

22 don't know.

23 MS. BELLOMO: Have you done any studies to determine

24 where the irrigation water that is spread on Thompson Meadow

25 goes, if it migrates anywhere off the meadow?

1215

01 MR. VORSTER: I assume that there is -- I have seen

02 surface water flow across the County Road because of excess

03 irrigation. I have also, at times, seen it in the creek

04 that goes through the park, that has water intermittently

05 due to the presumed excess irrigation that occurs above the

06 County Road.

07 MS. BELLOMO: What environmental changes have you

08 identified that will result in the north end of the Mono

09 Basin if your proposal is adopted?

10 MR. VORSTER: I am sorry, you are asking what study --

11 MS. BELLOMO: What environmental changes have you

12 identified, if any, that will occur in the north end of the

13 basin if your Mono Lake Committee proposal that you set

14 forth in your testimony is adopted?

15 MR. VORSTER: That is an open-ended question, and I

16 don't think -- I see if I can --

17 MS. BELLOMO: How can it be open-ended? I asked: What

18 changes have you identified that would occur?

19 MR. VORSTER: To the extent that there would be less

20 water going on the Thompson Meadow and that area, there

21 would be less surface water just flowing across the County

22 Road, which I observed at times.

23 I don't think -- I think the intent of the Mono Lake

24 Committee proposal is to preserve the basic environmental

25 structure that we have there: the meadow vegetation, the

1216

01 cottonwood trees, and the basic components of the

02 environment there would be maintained. So I don't think

03 there would be any -- I do not think there would be any

04 significant environmental change in the Mono Lake Committee

05 proposal.

06 MS. BELLOMO: In the north end of the basin?

07 MR. VORSTER: To the extent that 25 acres of the Upper

08 Thompson Meadow would not be irrigated, that there may be

09 some change there. To the extent that Mattly Meadow would

10 not be as extensive or would not be irrigated, there may be

11 some change there in terms of the length of the time that

12 the meadow is green or moist.

13 And I would say the other change would be that the

14 fishery in Wilson Creek might be impacted.

15 MS. BELLOMO: At this point you haven't determined

16 whether it would or not?

17 MR. VORSTER: I am not a fisheries' expert, but I

18 consider there would be less water in Wilson Creek under the

19 Mono Lake Committee proposal, so there might be an impact to

20 the fishery.

21 MS. BELLOMO: Would you exact any change in the

22 riparian habitat on Wilson Creek as it passes through Conway

23 Ranch?

24 MR. VORSTER: I am not a riparian expert. I think that

25 would be -- there is testimony to that effect from the State

1217

01 Lands Commission. I am not an expert.

02 Again, the intent of the Mono Lake Committee's proposal

03 is to maintain the basic riparian structure through the

04 Conway Ranch. There may be some changes. Again, I am not

05 an expert.

06 MS. BELLOMO: Do you have any opinion as to whether

07 there would be any change in the riparian habitat on Wilson

08 Creek below the Conway Ranch if your Mono Lake Committee's

09 proposal were adopted?

10 MR. VORSTER: I would answer it the same way. I would

11 refer to the experts, and they providing testimony to that

12 effect.

13 MS. BELLOMO: That there would be?

14 MR. VORSTER: No. There is possibly to the extent that

15 there is not as much water in that reach as there is today.

16 Although, those riches don't always surface flow. But to

17 the extent that there is less water below Conway Ranch than

18 there has been historically, it is possible there may be

19 some change. Although the riparian vegetation in that area,

20 it's not extensive at all. But, again, I would defer to

21 other experts.

22 MS. BELLOMO: I don't want to abuse your generosity in

23 letting me have additional time, so I will stop at this

24 time.

25 Thank you.

1218

01 CHAIRMAN CAFFREY: I appreciate you're understanding,

02 Ms. Bellomo.

03 Let me just state the hour of noon having arrived, we

04 will take a lunch break. I'd like to take a 45-minute break

05 so we can get a head start on the afternoon.

06 Let me also announce that I don't plan to go beyond

07 4:30, a quarter to 5 at the latest today. Before I

08 absolutely make that the rule I want to check with Mr.

09 Dodge.

10 Am I correct in understanding that Mr. Stine cannot be

11 here, Dr. Stine cannot be here today; is that right?

12 MR. DODGE: My understanding is that Dr. Stine cannot

13 be here tomorrow and that he can be here until on 1:00 on

14 Wednesday.

15 CHAIRMAN CAFFREY: If we run out of time and haven't

16 completed with his testimony and cross-examination, for that

17 matter, we can - we will take it up on Wednesday.

18 MR. DODGE: I am confident we can get through at least

19 that much.

20 CHAIRMAN CAFFREY: Let's be back here at a quarter to

21 one.

22 Thank you.

23 (Luncheon break taken.)

24 ---oOo---

1219

01 AFTERNOON SESSION

02 ---oOo---

03 CHAIRMAN CAFFREY: Good afternoon and welcome back.

04 We had finished the cross-examination of this panel by

05 Ms. Bellomo, and we will proceed from there.

06 Is Mr. Haselton here?

07 Did you wish to cross-examination these witnesses,

08 sir? Welcome.

09 MR. HASELTON: Thank you, Mr. Caffrey. I just have, I

10 believe, two very quick questions for Mr. Harrison.

11 ---oOo---

12 CROSS-EXAMINATION

13 BY ARCULARIUS RANCH

14 BY MR. HASELTON

15 Q. Mr. Harrison, I am looking at your testimony on Page

16 3. Essentially, I have two questions of clarification. And

17 that is at the bottom of Page 3 you state what you were

18 asked to do, and that was to investigate options for

19 obtaining recommended channel maintenance flows in Rush

20 Creek and then you qualify that with a series of bullets,

21 and you go on to the next page.

22 My question to you is: Were you asked by your clients

23 to review the recommended channel maintenance flow that is

24 described in Decision 1631?

25 MR. HARRISON: Don't recall that I was.

1220

01 MR. HASELTON: In preparing your testimony you also

02 state you reviewed documents, and I guess the next question

03 is: Did you have an opportunity or did you, in fact, review

04 Decision 1631?

05 MR. HARRISON: I think I do have a copy of it, and I

06 did look at, but it's been sometime ago.

07 MR. HASELTON: The answer to that question is, yes, you

08 did review?

09 MR. HARRISON: Yes.

10 MR. HASELTON: That is it.

11 CHAIRMAN CAFFREY: Thank you, Mr. Haselton.

12 I didn't see Mr. Ridenhour. Is Mr. Ridenhour here?

13 Mr. Ridenhour is not here.

14 Mr. Roos-Collins.

15 MR. ROOS-COLLINS: Afternoon. Mr. Chairman, my green

16 light has started even before I do.

17 CHAIRMAN CAFFREY: Mr. Johns is very anxious.

18 MR. ROOS-COLLINS: Before I begin my cross-examination

19 I do have -- I need to inform you of certain scheduling

20 constraints for the witnesses that constitute California

21 Trout panel.

22 CHAIRMAN CAFFREY: All right.

23 MR. ROOS-COLLINS: Mr. Vorster is available today, but

24 not Tuesday or Wednesday. Dr. Mesick is available today,

25 but not Tuesday. And Dr. Stine is available today, but not

1221

01 Tuesday or Wednesday afternoon.

02 Now, I understand that you have more than your share of

03 scheduling difficulties to deal with. I don't propose a

04 remedy at this time. I simply note that this is the last

05 opportunity for Mr. Vorster to testify on behalf of

06 California Trout as well as the Mono Lake Committee during

07 the dates that you have currently scheduled for this

08 hearing.

09 I also note that my other witnesses are not going to be

10 be available again until Wednesday.

11 CHAIRMAN CAFFREY: We'll do everything that we can to

12 accommodate, including, if need be, if we get -- we'll take

13 an assessment this afternoon, and if we are running out of

14 availability, we may have to take a little time tonight, I

15 would imagine. We will try to avoid that if we can.

16 MR. ROOS-COLLINS: Thank you.

17 ---oOo---

18 CROSS-EXAMINATION

19 BY CALIFORNIA TROUT, INC.

20 BY MR. ROOS-COLLINS

21 Q. Mr. Vorster, my questions for you concern Pages 9 and

22 10 of your written testimony. Your comparison of channel

23 maintenance flow schedules and also your Attachments 10 and

24 11, which also make the same comparison.

25 Your testimony compares several channel maintenance

1222

01 proposals to unimpaired flows on Rush Creek; is that correct?

02 MR. VORSTER: That is correct. That is what I show on

03 Attachment 11.

04 MR. ROOS-COLLINS: Unimpaired means not regulated by

05 human facility or activity?

06 MR. VORSTER: That is correct.

07 MR. ROOS-COLLINS: When were the flows of Rush Creek

08 first impaired?

09 MR. VORSTER: Irrigation diversions on Rush Creek

10 probably occurred in the late 19th century, to a limited

11 degree, and caused some impairment during the irrigation

12 season. The most significant impairment occurs -- started

13 to occur around 1920 when the predecessor to Southern

14 California Edison built reservoirs in the upper watershed of

15 Rush and Lee Vining Creek.

16 MR. ROOS-COLLINS: By 1949, when Los Angeles received

17 its water right permits for Rush Creek, flows were already

18 impaired?

19 MR. VORSTER: Yes, they were.

20 MR. ROOS-COLLINS: Does Decision 1631 require Los

21 Angeles' Stream Restoration Plan to compare channel

22 maintenance proposals with unimpaired flows?

23 MR. VORSTER: No, it doesn't.

24 MR. ROOS-COLLINS: Does it even require a channel

25 maintenance proposal?

1223

01 MR. VORSTER: No.

02 MR. ROOS-COLLINS: So, in preparing your testimony,

03 what was your purpose in comparing the channel maintenance

04 proposal now before this Board with unimpaired flows?

05 MR. VORSTER: My purpose was twofold, and it was really

06 guided by the philosophy and testimony provided by the

07 stream scientists, in particular Dr. Trush. I think on Page

08 9 of my testimony acknowledged their commitment and

09 understanding that the unimpeded flow regimes are

10 appropriate flows determining contemporary channel dynamics

11 and potential for recovery. This is from the October 1995

12 draft workplan of the stream restoration scientists.

13 So, the flow recommendations that they provided use the

14 unimpaired flow regime as, what I call, a guide post. And

15 it is because, as the stream scientists themselves

16 acknowledged, the habitat conditions that were there, that

17 we're trying to restore, were the result of the unimpaired

18 flows that had occurred for thousands of years before that,

19 before 1941.

20 MR. ROOS-COLLINS: Let me break your answer into two

21 parts. In preparing your testimony, then, you assumed that

22 the channel conditions, which existed in 1941, had been

23 caused by unimpaired flows?

24 MR. VORSTER: Yes, or were the result of unimpaired

25 flows.

1224

01 MR. ROOS-COLLINS: You also assumed that restoration

02 of Rush Creek requires something like unimpaired flows?

03 MR. VORSTER: Yes. Again, using unimpaired flows as a

04 guide post. I think Dr. Trush also articulated the point

05 that for the streams to function in an alluvial manner that

06 his observations on the creeks confirmed that they were

07 functioning alluvially and as a result of the unimpaired

08 flows, that the unimpaired flows were the flows that would

09 allow the streams to function in the way that he felt that

10 they could function

11 MR. ROOS-COLLINS: You arrived at your assumptions

12 regarding unimpaired flows in part from Dr. Trush's 1995

13 report?

14 MR. VORSTER: Yes, and subsequent conversations that I

15 had with him and the monitoring plan that was submitted by

16 Dr. Trush.

17 MR. ROOS-COLLINS: Let me move on now to a related

18 issue. I ask you to assume for the purpose of this line of

19 questioning, that a flow of magnitude 350 cubic feet per

20 second is needed to mobilize the channel better. I ask you

21 to assume that, not opine that. Assuming that a flow of 350

22 cubic feet per second is a desirable flow in the channel

23 maintenance schedule, how often would that flow occur under

24 unimpaired conditions?

25 MR. VORSTER: In looking at the period of record, 1940

1225

01 through '89 or '41 through '90, that 50 year period,

02 approximately three-quarters of the time, a flow of 350 cfs

03 or greater would occur under unimpaired conditions.

04 MR. ROOS-COLLINS: Unimpaired?

05 MR. VORSTER: Unimpaired.

06 MR. ROOS-COLLINS: For the purpose of that answer, you

07 calculated what unimpaired flows would be, on the basis of

08 impaired flows from 1941 to 1990?

09 MR. VORSTER: Right, and adjusting it for the storage

10 change in the Southern California Edison reservoirs.

11 MR. ROOS-COLLINS: An unimpaired flow of 350 cubic feet

12 per second would occur in 75 percent of the years?

13 MR. VORSTER: Right. It would actually occur -- it

14 occurred in 75 percent of the years. And in some of those

15 years, it occurred more than once.

16 It would occur, perhaps, let's say in late May, again

17 in middle of June and maybe again in early July. It would

18 have multi peaks.

19 MR. ROOS-COLLINS: For the sake of clarity in the

20 record, let me ask that you confine further answers to

21 frequency stated in terms of years, in other words, in how

22 many -- in what percentage of the years would a flow of this

23 magnitude occur. And your answer is 75 percent?

24 MR. VORSTER: Yes, approximately.

25 MR. ROOS-COLLINS: How often do impaired flows equal or

1226

01 exceed 350 cubic feet per second?

02 MR. VORSTER: In far less number of years. I think Dr.

03 Beschta in his testimony, which I don't have right in front

04 of me, provided --

05 MR. ROOS-COLLINS: Mr. Vorster, I am providing you Dr.

06 Beschta's testimony which is Los Angeles Exhibit 27.

07 MR. VORSTER: In Dr. Beschta's testimony, Exhibit DWP

08 Number 27, in Table 2, he gives us some -- we can't answer

09 that question directly, but he does show that a flow of

10 somewhere between the wet normal and wet year types the

11 estimated impaired peak flow for the median year would be in

12 the 350 cfs range.

13 A 350 cfs flow, I think, under impaired conditions

14 would occur, if my memory serves me correctly, probably in

15 about 20 percent of the years. But I would have to refer to

16 documents that I don't have in front of me.

17 MR. ROOS-COLLINS: Under D-1631, how often would the

18 flow equal or exceed 350 feet per second?

19 MR. VORSTER: Under D-1631, there was no requirement to

20 release flows of that magnitude. They would occur in wetter

21 years or very wet and extreme years just because, before,

22 Los Angeles didn't have the ability to divert the water,

23 and so flows in excess of 350 would occur occasionally. But

24 there was no requirement in D-1631 to release flows of that

25 magnitude.

1227

01 MR. ROOS-COLLINS: Under Los Angeles' proposal, as

02 stated in its Stream Restoration Plan, how often would the

03 flow exceed 350 cubic feet per second, equal or exceed?

04 MR. VORSTER: They would have flows in excess of 350

05 cubic feet per second in the normal to wet normal, wet and

06 extreme years, which represents about 45 percent of the year

07 type, in 45 percent of the year.

08 MR. ROOS-COLLINS: On the basis of the document review

09 you did in preparation for your testimony, do you have an

10 opinion regarding the comparative durations of a flow of 350

11 cubic feet per second under the four scenarios we just

12 discussed, namely unimpaired, impaired, D-1631, and Los

13 Angeles' proposal?

14 MR. VORSTER: With D-1631 flows of 350 cfs would occur,

15 as I said, in the wet and extreme years. And so, it would

16 be difficult for me to say how often, what the duration that

17 would occur in those year types. If I can refer to

18 attachment 11 --

19 MR. ROOS-COLLINS: Please.

20 MR. VORSTER: Just so you understand what Attachment 11

21 is, I took the different year types that have been used for

22 Rush Creek, and I took representative years to represent a

23 typical year in that year type. And I then looked at what

24 the recommended channel maintenance flows were for the

25 different proposals: Decision 1631, DWP proposed flow

1228

01 regimes, the ad hoc subcommittee's recommendation in

02 February 1996, and the scientists' October 1995

03 recommendations.

04 And in the lighter type we have the magnitude and

05 duration of their recommendations. And I compared the

06 duration with the unimpaired in that particular year type.

07 So, for example, if you wanted to look at a 1980 wet year,

08 you would see that the scientists' recommendation of 500

09 cfs for five days in that year type, in that particular

10 year, there were 15 days in excess of 500 cfs. In fact, the

11 peak flow was 801 cfs.

12 MR. ROOS-COLLINS: Mr. Vorster, excuse me. Before you

13 proceed further with explanation of Attachment 11 to your

14 written testimony, could you focus specifically on the

15 magnitude of 350 cubic felt per second and explain to the

16 Board what this comparison shows with regard to that

17 magnitude specifically?

18 MR. VORSTER: Well, we don't have a 350 listed except

19 for the scientists' flows in normal one and normal two. So

20 we will have to use the flows closest to 350 cfs, as

21 something close to that.

22 So, for example, in DWP's proposal normal two years,

23 you have flows of 380 cfs for five days, and in that

24 particular year, 1979, there were 25 days in excess of 380

25 cfs.

1229

01 MR. ROOS-COLLINS: 25 days of unimpaired flows?

02 MR. VORSTER: Right. And the ad hoc also recommended

03 380, and the scientists', in October 1995, recommendation

04 was 400. And, indeed, 25 days exceeded 400 cfs.

05 MR. ROOS-COLLINS: Does this attachment show us

06 unimpaired flows -- excuse me, impaired flow?

07 MR. VORSTER: No. This is comparing proposed channel

08 maintenance flow recommendations with the unimpaired flows

09 in these particular years and comparing them both in

10 duration and magnitude. It shows the magnitude of the

11 unimpaired peak flows in these particular years.

12 MR. ROOS-COLLINS: I understand that it is difficult

13 to summarize the duration associated with any given flow

14 across all of these different proposals.

15 Would it be correct, however, to conclude that Los

16 Angeles's proposal would equal or exceed 350 cubic feet per

17 second for a shorter duration than unimpaired flows?

18 MR. VORSTER: Yes.

19 MR. ROOS-COLLINS: Let's move on now to a different

20 flow magnitude, now 500 cubic feet per second. Again, I ask

21 you to assume that 500 cubic feet per second. Is that flow

22 necessary to start a physical process such as flood plan

23 inundation?

24 Given that assumption, how often would unimpaired flows

25 equal or exceed 500 cubic feet per second?

1230

01 MR. VORSTER: In about half the years.

02 MR. ROOS-COLLINS: At least once.

03 MR. VORSTER: At least once the flows exceeded 500 cfs.

04 MR. ROOS-COLLINS: How often did impaired flows -- how

05 often do impaired flows equal or exceed 500 cubic feet per

06 second?

07 MR. VORSTER: During the period 1941 to 1990, they

08 exceeded 500 cfs, I think, twice, 1967 and possibly 1983. I

09 would have to check that. So, four percent -- in four

10 percent of the years. In 1995 they also exceeded 500 cfs.

11 MR. ROOS-COLLINS: Under Decision 1631, how often would

12 the flows exceed equal or exceed 500 cubic feet per second?

13 MR. VORSTER: The same. Because in those year types,

14 if we had years similar to 1967 and 1983 occur in the

15 future, under D-1631, Los Angeles would have no choice but

16 to release those flows down the stream into Grant Lake.

17 Grant Lake would spill or -- excuse me, in 1967 Grant Lake

18 would spill and the flows -- if Grant Lake spilled the flows

19 would be greater than 500 cfs under D-1631. It's likely

20 that Grant would spill in those years.

21 MR. ROOS-COLLINS: You began your answer by saying "the

22 same." You mean the same as you prior answer?

23 MR. VORSTER: Yes, I'm sorry.

24 MR. ROOS-COLLINS: Approximately four percent of the

25 time?

1231

01 MR. VORSTER: Correct.

02 MR. ROOS-COLLINS: Finally, under Los Angeles'

03 proposal, how often would flows equal or exceed 500 cubic

04 feet per second?

05 MR. VORSTER: In Los Angeles' proposal, 500 cfs or

06 more would occur in the extreme year type, which represent

07 eight percent of the years. Extreme years are 1983, 1969,

08 1982, and I think maybe '67. I can't remember if '67 was

09 considered a wet or extreme year. But in 4 out of the 50

10 years, the flows would equal or exceed 500 cfs.

11 MR. ROOS-COLLINS: Let me turn now to a third issue and

12 my last with you, which is the impact on Los Angeles'

13 operations of dedicating more water to channel maintenance

14 than required by Decision 1631.

15 Do you have the Grant Lake Operations and Management

16 Plan in front of you?

17 MR. VORSTER: No, but I can get it.

18 MR. ROOS-COLLINS: Let me show this plan, which is Los

19 Angeles -- this plan, and specifically Page 51, final

20 paragraph.

21 Los Angeles estimates that compliance with the base and

22 channel maintenance flow requirement of D-1631 would require

23 approximately 76,000 acre-feet of water on average during

24 the transition period, and compliance with the lake target

25 requirement would require an additional 30,000 acre-feet or

1232

01 so.

02 Do you see that discussion?

03 MR. VORSTER: Yes. I would slightly clarify your

04 reading of that. I think they say the long-term average

05 release requirement to the Mono Basin streams of 76,000

06 acre-feet per year. I think they are representing that as

07 the base flow requirement, the fish flow requirements, if I

08 read that correctly. And during the transition period on

09 average an additional 30,000 acre-feet above and beyond the

10 minimum stream flow requirements will be released into the

11 Mono Basin creeks.

12 I would have to -- I am not sure that 30,000 does or

13 not -- does or does not include the channel maintenance flow

14 requirements of D-1631. But I think it may not.

15 MR. ROOS-COLLINS: You are familiar with the plan's use

16 of the term "lake maintenance water" to describe that block

17 of 30,000 acre-feet on top of the stream requirements.

18 MR. VORSTER: Yes.

19 MR. ROOS-COLLINS: If this Board were to adopt a

20 channel maintenance schedule in excess of the one already

21 required by Decision 1631, where would the water come from?

22 MR. BIRMINGHAM: Objection. Calls for speculation.

23 CHAIRMAN CAFFREY: It probably does.

24 MR. BIRMINGHAM: Mr. Roos-Collins can ask him to

25 identify sources of the water, but he can't ask him to

1233

01 identify where the water would come from.

02 MR. ROOS-COLLINS: I withdraw the question.

03 CHAIRMAN CAFFREY: That is a fair ruling, Mr.

04 Birmingham. Thank you.

05 MR. BIRMINGHAM: You're welcome.

06 CHAIRMAN CAFFREY: I was just going to say that.

07 MR. DODGE: I am getting a little concerned here. When

08 I complained to you about my sources -- my place in the

09 cross-examination earlier in this proceeding, I was laughed

10 out of room. Mr. Birmingham complains last week, and he

11 immediately was put where he wants to be. Now he is making

12 rulings.

13 CHAIRMAN CAFFREY: I will let you rule before this

14 hearing is over.

15 MR. DODGE: Thank you.

16 CHAIRMAN CAFFREY: You get one ruling.

17 The question is withdrawn, so there is no need to rule

18 in this particular case.

19 Go ahead, Mr. Roos-Collins.

20 MR. ROOS-COLLINS: Mr. Vorster, assuming that for the

21 purpose of this question that water is not imported from Lee

22 Vining Creek, and assuming further that this Board amends

23 Decision 1631 to require channel maintenance flows in excess

24 of those already required, can the additional flows come

25 from what is characterized here as lake maintenance water?

1234

01 MR. VORSTER: Yes.

02 MR. ROOS-COLLINS: Thank you.

03 No further questions.

04 CHAIRMAN CAFFREY: Thank you very much, Mr.

05 Roos-Collins.

06 CHAIRMAN CAFFREY: Ms. Cahill, good afternoon.

07 MS. CAHILL: Afternoon.

08 ---oOo---

09 CROSS-EXAMINATION

10 BY DEPARTMENT OF FISH AND GAME

11 BY MS. CAHILL

12 Q. Mr. Harrison, I would like to start with some questions

13 on your testimony. On Page 7 of the testimony, you estimate

14 the cost of a Grant Lake tunnel outlet and you state that

15 you have added 30 percent for contingency, which you believe

16 to be conservative.

17 Is that right?

18 MR. HARRISON: Yes. I believe the overall estimate to

19 be conservative.

20 MS. CAHILL: By conservative, do you mean -- would you

21 explain what you mean by conservative in this case?

22 MR. HARRISON: The real costs are likely to be less

23 than the estimated cost, definition of conservative for this

24 purpose.

25 MS. CAHILL: So, it would be your opinion that an

1235

01 estimated contingency allowance of 40 percent would be

02 higher than required?

03 MR. HARRISON: Perhaps not. It depends on the level of

04 unknowns. I put on this particular case, easily, since the

05 contingency is in the range of 30 to 40 percent.

06 MS. CAHILL: But expecting the actual cost to always be

07 less?

08 MR. HARRISON: Yes.

09 MS. CAHILL: Further down in Table 1 you cost out three

10 Howell-Bunger valves. Can you tell us what size of

11 Howell-Bunger valves you were costing?

12 MR. HARRISON: That I more or less followed DWP's lead

13 and assumed 30-inch valves. These are, again, approximate

14 estimates of the cost.

15 MS. CAHILL: Did you have Los Angeles' figures where

16 you prepared your testimony?

17 MR. HARRISON: I did.

18 MS. CAHILL: So, can you explain the discrepancy where

19 you cost a 30-inch Howell-Bunger valve at $50,000 each, and

20 Los Angeles costs them at $125,000 each?

21 MR. HARRISON: Well, I don't know that is a specific

22 discrepancy. I quoted both a price here for valves and for

23 valve installation. So there is not that big -- quite that

24 big a difference as implied by the numbers for the valves

25 themselves. I think SCE's figure includes both their

1236

01 furnishing the valve and installation.

02 MS. CAHILL: If you sum your purchase and

03 installation, what is the total cost?

04 MR. HARRISON: It would be $66,667 there from the

05 document.

06 MS. CAHILL: For three of them?

07 MR. HARRISON: For three of them, it would be three

08 times that or $200,000.

09 MS. CAHILL: That is still well below Los Angeles'

10 estimate of $375,000?

11 MR. HARRISON: Yes, it is.

12 MS. CAHILL: You discussed various methods of achieving

13 flows of 600 cfs in Rush Creek; is that correct?

14 MR. HARRISON: Yes. I discussed those methods proposed

15 by DWP. I did not bring up any new methods.

16 MS. CAHILL: With regard to flows of 600 cfs, is it

17 your opinion that a new release facility would be able to

18 release those flows more reliably than what we call the Lee

19 Vining augmentation?

20 MR. HARRISON: Yes, that is my opinion.

21 MS. CAHILL: You have explained a little bit of what

22 Iowa vanes are. And do they result in continuous sediment

23 passage?

24 MR. HARRISON: No. They would result in sediment

25 passage when there is sufficient flows of sediment

1237

01 manufactured in the system. When there is no sediment

02 moving in the system, they would not be passing sediment.

03 MS. CAHILL: Would they be passing gravel or just

04 fines?

05 MR. HARRISON: They could pass gravels as wells as

06 fines. Depends on the flow velocities and configurations.

07 MS. CAHILL: Would you expect them, for the cost that

08 you estimated, to pass gravel or would that take additional

09 engineering?

10 MR. HARRISON: My estimate is construction cost. It

11 does not estimate the engineering studies or design that

12 should go into this.

13 MS. CAHILL: So, it would depend on the design, whether

14 they were actually able to pass gravel as well?

15 MR. HARRISON: Right. I feel confident that designs

16 could be developed that at given flows it would pass

17 gravel.

18 MS. CAHILL: Are you familiar with Iowa vanes that have

19 actually be installed on various rivers?

20 MR. HARRISON: Physically, I've personally never seen

21 one. I've seen videos, pictures, and videotapes of model

22 studies.

23 MS. CAHILL: Do you have any idea what the O&M costs

24 would be of Iowa vanes solution?

25 MR. HARRISON: No. I would expect it, however, to be

1238

01 quite low. They're not a mechanical system. They are a

02 fixed and active-passive type device.

03 MS. CAHILL: This Iowa vane solution would not allow

04 the upstream migration of fish, would it?

05 MR. HARRISON: It would make no difference.

06 MS. CAHILL: The third option, the bypass channel,

07 could you pull up your graphic? You mentioned that this was

08 a high flow bypass; is that right?

09 MR. HARRISON: Yes. I said high flow. It could also

10 release -- I would also explain it could release flows

11 throughout the year that were in excess of the needs for

12 diversion.

13 MS. CAHILL: Were you aware that Los Angeles'

14 proposal is to let Walker and Parker Creeks, basically, flow

15 through in all years except dry years?

16 MR. HARRISON: I am not aware of that specific

17 statement at this time. I probably read that and I have

18 forgotten it.

19 MS. CAHILL: Let me ask you if there is another

20 plausibility. Assume that on Walker Creek and Parker Creek

21 the flows that come downstream continue downstream in all

22 year types except the dry years. So that they would come

23 down and make the circle and go on in almost all cases.

24 MR. HARRISON: You are stating there would be no

25 diversions in this?

1239

01 MS. CAHILL: No versions at all in all year types with

02 the exception of dry. So that the high flows for which you

03 designed would always be going around. And that in those

04 dry years it would be necessary to divert on Walker 4 cfs

05 and 6 cfs, and on Parker 6 cfs and 9 cfs. I don't know

06 quite how to ask you this without sort of coming to the

07 graph.

08 If all you needed to pass was a maximum of, let's say,

09 9 cfs only in dry years, instead of having your division

10 structure here that divides the flow, could you instead

11 design the channel so that almost all the time the entire

12 flow goes in your bypass channel with some sort of

13 structure, using boards or some other facility, so that in

14 the 20 percent of the year when those low flows are required

15 to be released, they could be released to then be put into

16 the conduit?

17 MR. HARRISON: Yes, that is avery easy possibility,

18 very easy to accomplish.

19 MS. CAHILL: Would that tend to be more expensive or

20 less expensive than what you have designed?

21 MR. HARRISON: I think it would probably be about the

22 same. Still have to have attach some kind of headwork

23 structure to accomplish that. I haven't detailed this

24 headwork structure in any way.

25 MS. CAHILL: If the headworks structure were here, as

1240

01 opposed to across this whole channel, would then upstream

02 fish migration be a possibility at all times?

03 MR. HARRISON: Well, I am not a fisheries' expert

04 either, so I don't think I will respond to that.

05 MS. CAHILL: Fair enough.

06 There would be no impediment in that hypothetical where

07 the structure is used to release water into the pond and the

08 conduit, there would not need to be a barrier across the

09 bypass channel?

10 MR. HARRISON: True. What I have shown here, it looks

11 like a dam. This is a cartoon. It isn't an engineering

12 drawing. So, certainly, in my imagination about what this

13 thing could look like, it could be designed to allow fish --

14 unimpeded water for fish, I believe, to swim up. Expert or

15 not.

16 MS. CAHILL: Thank you very much.

17 Actually, I think those are the only questions I do

18 have for you. One last one. You indicated that you had had

19 the opportunity to review Los Angeles' numbers. Their cost

20 estimates for a fish and bypass sediment on Walker and

21 Parker Creek is $1.6 million.

22 Do you believe that to be in the ballpark?

23 MR. HARRISON: I looked at their estimate. I really

24 didn't understand what they were trying to design in costs,

25 so I really am not in a position to comment on it, other

1241

01 than it seems very high to me.

02 MS. CAHILL: For the type of facility you have designed

03 here, which you said would be probably about the same cost

04 as what I was describing, tell us again what you think the

05 construction costs of that might be.

06 MR. HARRISON: Construction of a bypass channel, as I

07 estimated, is $250,000 Lee Vining Creek and 50,000 each for

08 Walker Creek and Parker Creek.

09 MS. CAHILL: Thank you.

10 Mr. Vorster I have few questions for you.

11 In your testimony, you addressed what we call the Lee

12 Vining augmentation as a method of getting up to flows of

13 approximately 500 cfs on Rush Creek.

14 How often will the Lee Vining augmentation need to be

15 used if Los Angeles' plan is implemented?

16 MR. VORSTER: It would need to occur in 40 percent of

17 the year types, which is the wet normal, wet and extreme

18 year types.

19 MS. CAHILL: In your opinion, is the reliability of the

20 Lee Vining augmentation, is it as reliable as a new release

21 facility from Grant Dam would be?

22 MR. VORSTER: No. As I testified, it would not be as

23 reliable. I think the events in 1996 confirm that.

24 MS. CAHILL: You testified with regard to the timing of

25 the peak on Rush Creek, that it might be delayed as much as

1242

01 three weeks the way the plan is described?

02 MR. VORSTER: In some years it could be delayed as

03 much as three weeks.

04 MS. CAHILL: What are the impacts then on Lee Vining

05 Creek of this augmentation plan?

06 MR. VORSTER: Well, there are a number of possible

07 effects. Depending on exactly how well the forecasting and

08 backcasting procedure that DWP has outlined were, it is

09 possible, for example, that the Lee Vining peak flow, the

10 primary peak, would be diverted.

11 Or what we do know is that flows of up to 150 cfs will

12 be diverted on the backend of the peak flow hydrograph,

13 which could take out up to three-quarters of flow.

14 MS. CAHILL: So, in other words, when we talk about

15 magnitude, timing, and duration, at a minimum this might be

16 affecting the duration of the Lee Vining peak?

17 MR. VORSTER: That's correct.

18 MS. CAHILL: What happens in those years when there

19 might be multiple peaks on Lee Vining Creek?

20 MR. VORSTER: In those years where there are multiple

21 peaks, which is the normal situation, snow melt hydrograph,

22 such as we see in Lee Vining Creek, you do get multiple

23 peaks and peaks, secondary peaks, that would occur after the

24 primary peak, assuming that DWP is able to predict when the

25 primary peak occurs, would be diverted, and you wouldn't

1243

01 have the benefit of that secondary peak.

02 MS. CAHILL: So, we would be, in effect, not having the

03 natural variability that you would otherwise have in the

04 stream?

05 MR. VORSTER: You would, basically, be restricting the

06 Lee Vining Creek to a potentially a single peak, similar to

07 what Grant Lake is going to be doing to the Rush Creek peak.

08 MS. CAHILL: Did you attempt to model what the Lee

09 Vining augmentation might do in certain years?

10 MR. VORSTER: I am not sure if I would use the word

11 "model." What I did do is, I looked at a couple year

12 types, for example 1980, which is a wet year, and 1982,

13 which is an extreme year. And I tried to put myself in the

14 position of being a DWP operator and trying to apply the

15 procedures that they have outlined that would occur, both

16 this forecasting and backcasting procedure. And it's

17 unclear exactly when they would begin their diversion for

18 augmentation. Because when you're actually in that

19 situation, you don't have the benefit of knowing what is

20 going to occur. All you have is the benefit of your

21 forecast that suggests approximately a window of time when

22 you expect your peak to occur and the approximate

23 magnitude.

24 But, obviously, in any particular year type the unique

25 situations will determine those, when they would occur. So

1244

01 it is possible, for example, that in looking at 1980 and '82

02 and it is -- if we had flows, runoff, similar to those, that

03 in 1982, for example, which is an extreme year where 150 cfs

04 is required to be diverted, that the flows -- if 150 cfs

05 were diverted, the flows would drop below D-1631 minimums.

06 Of course, DWP would not allow that to occur. So, you would

07 not be able to get the full 150 cfs.

08 MS. CAHILL: You wouldn't be able then to get the full

09 amount, which, added to the upgrade return ditch, would give

10 500 cfs?

11 MR. VORSTER: That is correct.

12 MS. CAHILL: In that year what you did get, would it be

13 later than the ordinary peak on Rush Creek?

14 MR. BIRMINGHAM: Objection. Ambiguous.

15 MS. CAHILL: In that year that you looked at, when you

16 did augment with Lee Vining, even though it was less than

17 the full 150, would that water arrive at Rush Creek at a

18 time later than the Rush Creek peak?

19 MR. BIRMINGHAM: Objection. Ambiguous.

20 MS. CAHILL: Would it arrive later at the impaired Rush

21 Creek peak?

22 MR. VORSTER: I looked at -- again, it is hard to say

23 exactly when they would divert. That is one of the

24 problems, because the procedures are not real clear in my

25 mind in terms of how the forecasting and backcasting

1245

01 procedures would actually be implemented. Let's say it

02 leaves some discretion, obviously, to the operator as to how

03 to implement them, given as they are stated right now. So,

04 it is possible that, depending on when the Lee Vining

05 diversions occur, that the Rush Creek peak with the

06 augmented flows would occur after the unimpaired peak. It

07 is possible that they could time it to be more closely

08 aligned. But then, if they did that, they'd probably be

09 diverting the Lee Vining Creek peak.

10 MS. CAHILL: Can you just tell me what you mean by

11 "backcasting"?

12 MR. VORSTER: That is actually a term that I think I'll

13 give Dave Allen credit for it. Or if he doesn't want to

14 take credit for it, I will take credit. Just a term that

15 the two of us have been using in describing procedure that,

16 as he explained it to me, that is the way you can tell that

17 a peak flow has occurred in Lee Vining Creek is in looking

18 at the historic record, that if there have been seven

19 consecutive days of declining flow, you would be assured

20 that the peak has occurred. In other words, during the peak

21 flow hydrograph you get flows that go up and down, up and

22 down. When they finally start declining for seven

23 consecutive days, you know, at least based upon historical

24 records that we have, that you will have passed the peak.

25 So, it is only by seeing how many consecutive days of

1246

01 declining flow that there has been and seeing that it has

02 been seven or more days, well, you have known that peak has

03 occurred.

04 MS. CAHILL: Even then, there is uncertainty, is there

05 not?

06 MR. VORSTER: The future can always be different than

07 the past.

08 MS. CAHILL: Let me switch briefly over to the

09 Mill-Wilson Creek system. Given current circumstances, is a

10 portion of Mill Creek dry with some regularity?

11 MR. VORSTER: Oh, yeah. In those years when there is

12 not a spill from or release from Lundy Dam, the common

13 occurrence for most of the year is that Lee Vining Creek,

14 down around the County Road --

15 MS. CAHILL: You mean Mill Creek?

16 MR. VORSTER: I'm sorry, Mill Creek. I had to

17 switch.

18 Mill Creek, down around the County Road, is dry or has

19 residual pools because, especially during irrigation season

20 when the water that is in Mill Creek, this spring flow gain

21 that is Mill Creek and any water return from the Wilson

22 ditch by the Mill Creek Return Ditch, any water that is in

23 Mill Creek is going to diverted by the irrigation ditches.

24 If there is water left over, which might be, you know,

25 anywhere from 2 to 5 cfs, if any, by the time it gets down

1247

01 to the County Road, there is very little, if any, water

02 left. It is a fairly common occurrence during the summer.

03 It is -- actually, when Larry Harrison and I were there last

04 October, we, indeed, saw just pools of water down at Mill

05 Creek. It's --

06 MS. CAHILL: If Los Angeles were to dedicate its water

07 right and do nothing more, would there still be periods in

08 which Mill Creek would go dry?

09 MR. VORSTER: Yes. If Mr. Reise can turn the folders

10 back to the first one, Scenario 1, Scenario 1, as it is

11 currently displayed, says expected the Mill-Wilson flows if

12 DWP dedicates existing rights and appropriate October

13 through April water. So, if we just look at the period May

14 through September, that is the irrigation period in which

15 DWP could dedicate their rights, you can see in a dry year

16 that Mill Creek below the County Road is restricted to less

17 than cfs here [verbatim]. Again, to me that represents a

18 condition that it may have water; it may not have water.

19 MS. CAHILL: If they didn't also get the appropriation,

20 what would happen in the winter months?

21 MR. VORSTER: If they did not get the appropriation,

22 you would just basically take away these numbers and make

23 them zero.

24 MS. CAHILL: We need to describe what that is.

25 This is --

1248

01 MR. VORSTER: I'm sorry. This Scenario 1, and I am

02 describing Mill Creek below the County Road in any of the --

03 especially the normal and dry year types, and, in fact, in

04 the wet year types. If they do not -- if they are not

05 successful in appropriating the water from Wilson or from

06 the power plant discharge, then there will be, essentially,

07 no water in Mill Creek down around the County Road unless

08 they are able to -- they have a 1 cfs right that, if they

09 are able to feel they can bring that over in the wintertime,

10 there would be that amount of flow they can bring back. By

11 the time you get down to the County Road, it would not be

12 there.

13 If they were not successful in getting their

14 appropriation, then the flow, Mill Creek at County Road,

15 would be zero or very little flow.

16 MS. CAHILL: From approximately October through --

17 MR. VORSTER: October through April. Basically, any

18 time the water flow was less than 12 cfs. The impaired at

19 Lundy Reservoir was less than 12 cfs, which you can see on

20 this exhibit for Scenario 1, looking at the impaired at

21 Lundy Reservoir in all the different year types, it's fairly

22 uncommon for the flows to be above 12 cfs.

23 MS. CAHILL: Wilson Creek, given current circumstances,

24 does part of Wilson Creek go dry in dry years?

25 MR. VORSTER: Yes. I have observed in dry years Wilson

1249

01 Creek being dry below the Conway Ranch.

02 MS. CAHILL. If Los Angeles dedicated its water right

03 to Mill Creek, would you expect that to increase the number

04 of years in which Wilson Creek might go dry or have not much

05 impact?

06 MR. VORSTER: It would have some impact. It would

07 increase the amount of time that Wilson Creek could go dry

08 below Conway Ranch.

09 MS. CAHILL: Thank you very much. Thank you all.

10 I have questions for Dr. Stine, but they fit more in

11 his testimony for Cal Trout. I will hold them till then.

12 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

13 MR. BIRMINGHAM: Mr. Caffrey, I would like to ask for

14 an opportunity of a recess to confer with Mr. Dodge, Ms.

15 Scoonover, Ms. Cahill on an issue of some importance, and

16 Mr. Roos-Collins.

17 CHAIRMAN CAFFREY: How much time do you all need?

18 MR. BIRMINGHAM: Ten minutes.

19 CHAIRMAN CAFFREY: Let's take a brief recess for 10 or

20 15 minutes.

21 (Break taken.)

22 CHAIRMAN CAFFREY: We're back from our recess.

23 Gentlemen, did you --

24 MR. BIRMINGHAM: Actually, we would like at this point,

25 Mr. Caffrey, to ask for another recess. But let us take a

1250

01 few moments and explain the reasons for it.

02 CHAIRMAN CAFFREY: Please.

03 MR. BIRMINGHAM: The Department of Water and Power of

04 the City of Los Angeles has been, as you know, talking with

05 a number of the other parties to this proceeding concerning

06 a settlement. It has reached agreement in principle with

07 the California Department of Fish and Game, California

08 Trout, Incorporated, the Mono Lake Committee, National

09 Audubon Society, State Lands Commission, Department of Parks

10 and Recreation. But we have not had an opportunity to --

11 CHAIRMAN CAFFREY: And U.S. Forest Service.

12 MR. BIRMINGHAM: And the U.S. Forest Service, excuse

13 me.

14 We have not had an opportunity to talk about our

15 settlement proposal with the People from Mono Basin

16 Preservation, nor BLM, nor Arcularius Ranch. We would like

17 to ask for another brief recess so we can present it to

18 them, with the hope that if they think this is something

19 worth pursuing, we would ask the State Board to continue the

20 hearing for a period of time to allow us to put the

21 agreement in writing.

22 CHAIRMAN CAFFREY: Let me just tell you that I can't

23 speak for Ms. Forster, but I suspect that she is going to

24 agree with me. We are certainly amenable to help you in any

25 way we can, to at least present an atmosphere and provide

1251

01 you the opportunity to reach some kind of settlement.

02 Obviously, it has to -- well, it doesn't have to. The more

03 parties that you can involve in it, the easier life becomes,

04 in terms of this hearing process, for all of us.

05 MR. DODGE: Without discussing the details, we are not

06 free to discuss the details with you. I have every reason

07 to believe that this settlement in principle should be

08 acceptable to the other parties to this proceeding.

09 CHAIRMAN CAFFREY: You said a brief recess. Do you

10 want to come back again this afternoon or take a recess

11 until tomorrow morning? I mean, we will try to be flexible.

12 What is it that you need? And recognizing, too, that Ms.

13 Bellomo and others are on limited time.

14 MR. BIRMINGHAM: They are completely in the dark on

15 this. I suspect we probably would like to come back this

16 afternoon, if possible. What I was thinking was perhaps a

17 15 minute to half an hour break. The one condition that we

18 would ask for is that the terms of the discussions that we

19 have with them remain confidential. Because in the event

20 that we are unable to reach agreement with all the parties,

21 we would not want the discussions that have occurred to

22 become public and prejudice the position of any of the

23 parties to those discussions.

24 CHAIRMAN CAFFREY: By that, I assume that if you all

25 can agree in principle that you have something, you don't

1252

01 want to tell the Board the details until you pound it out

02 and come back after a more extended recess.

03 MR. DODGE: And equally important, if we can't agree,

04 that we don't want the terms of our discussion disclosed to

05 third parties or to the Board or to staff. In fact, we

06 filed with the Board last September or October a stipulation

07 of confidentiality.

08 CHAIRMAN CAFFREY: You did.

09 MR. DODGE: We would like any party who wants to

10 discuss the tentative settlement to agree to the terms of

11 that stipulation.

12 CHAIRMAN CAFFREY: Ms. Forster.

13 MS. FORSTER: What were you going to say, Jerry?

14 MR. JOHNS: I was going to ask the parties here, are

15 they willing to agree to that or not?

16 CHAIRMAN CAFFREY: Is that agreeable to the parties for

17 the purposes of discussion, to keep it confidential?

18 MS. BELLOMO: If I could just ask for clarification at

19 this point. I know that since we are an organization, I

20 know principals of the organization, they must have some

21 circle of people that are allowed to know. Right? For

22 instance, Buddy Hoffman probably knows about the terms of

23 the settlement. Again, within your organization we have a

24 circle of people who are our decision making, you know,

25 participate in the decision making. We would like them to

1253

01 be privy to it as well. Since we have Heidi Hess-Griffin,

02 the secretary and treasurer of our group, she should be

03 privy to it, I would think.

04 With that understanding, that would be fine.

05 MR. DODGE: As long as the people who are privy to it,

06 agree to keep it just to yourselves, that is not a problem.

07 CHAIRMAN CAFFREY: And, of course if it doesn't go

08 forward, that confidentiality still abides, so to speak.

09 MR. DODGE: That is actually the purpose of it, of

10 course.

11 CHAIRMAN CAFFREY: Absolutely.

12 Is BLM agreeing?

13 MR. RUSSI: I would agree to going along with the

14 stipulation of confidentiality.

15 CHAIRMAN CAFFREY: Let's ask this, is there any party

16 who objects?

17 Mr. Haselton?

18 MR. HASELTON: We agree. Same concern as Ms. Bellomo

19 had within -- I represent basically two entities. That I

20 just need to have definition of who I can share that with.

21 CHAIRMAN CAFFREY: If I hear this, then you have

22 confidential circles that you are all separately a part of

23 which do not extend very far and which you need to share

24 information with them in order to get authorization to

25 either agree or disagree, so to speak.

1254

01 I don't see anybody objecting to that, so, that being

02 the case -- I am sorry, Mr. Dodge.

03 MR. DODGE: I was going to add, I think at least within

04 the group that has this tentative settlement, our feeling

05 is, subject obviously to Board's decision, but our feeling

06 is that if there is some party to this proceeding that does

07 not agree in principle to the settlement, that we ought to

08 proceed with testimony. And that if, on other hand, all

09 parties agree in principle to the settlement that we ought

10 to defer testimony for a period of time and try to get an

11 agreement in writing.

12 Now, let me say that this is not the simplest

13 settlement that I have ever dealt with, and, you know --

14 CHAIRMAN CAFFREY: I don't find that hard to believe.

15 MR. DODGE: There will be many steps between an

16 agreement in principle and a written agreement. I happen to

17 believe that the parties that have been privy to these

18 negotiations are all acting in good faith, and those steps

19 can be taken. But there is no guarantee of that.

20 CHAIRMAN CAFFREY: Certainly, the reason we are all

21 here is for one main reason, and that is to provide not only

22 the protection of the Lake, which we have done to some great

23 degree, but also protection of the streams and the

24 waterfowl.

25 And anything that we can do to facilitate that and

1255

01 expedite that is something that this Board is very, very

02 interested in. So, I certainly am amenable to -- let's

03 start out by granting at least a half hour recess right now,

04 and then see where that brings us, and when we come back we

05 can have some more discussion.

06 Again, I would say, I would want to consult with Mr.

07 Frink when we get to that point, a half hour from now. I

08 can certainly see a situation where it might not make a lot

09 of sense to continue today if you have an agreement in

10 principle with everybody. But we can get to the details of

11 that in a little while.

12 MR. DODGE: I would think that the rest of the day

13 would best be spent by Ms. Bellomo and her group and the

14 Arcularius group and the BLM getting on the phone, to

15 whomever they have to get on to the phone to, and rather

16 than testimony. But, again, it is up to you.

17 CHAIRMAN CAFFREY: That may very well be. That is

18 where I personally come down. We'll -- why don't you have

19 your half hour discussion and come back and see where we

20 are. I just don't want to jump ahead of everybody and not

21 allow them to have their say.

22 Let's try for a session in about ten minutes to --

23 let's just make it 3:00. Will that help?

24 Why don't we all come back at 3:00, and we will just

25 kick it around a little bit and see where we are.

1256

01 (Break taken.)

02 CHAIRMAN CAFFREY: All right. Welcome back everybody.

03 Do we have a report?

04 MS. BELLOMO: May I report for our group?

05 CHAIRMAN CAFFREY: Please, Ms. Bellomo.

06 MS. BELLOMO: We need to consult with members of our

07 group, and we would like to get back to you tomorrow morning

08 with some sort of response, maybe a final response or status

09 report. Until we talk to people, I wouldn't know.

10 So my proposal would be that we continue this afternoon

11 to make use of the time, in the event this doesn't manifest.

12 Then we are still going to need to go forward with

13 cross-examination of people. Seems like a good time, time

14 well spent if we did that today. But anyway, I certainly

15 would leave that up to you.

16 The other questions that I had was without divulging

17 any of the terms of the settlement, is there any possibility

18 that there is anyone on the Water Board staff that could be

19 made available to us just to help us understand what the

20 process would be like if there isn't a settlement, not to

21 talk about the settlement itself. I don't know that we

22 really understand the proceeding well enough here to know

23 what is it we are giving up or how a settlement would be

24 dealt with or anything like that.

25 CHAIRMAN CAFFREY: It depends on the settlement.

1257

01 Depends on the details of the settlement. I don't know. Is

02 that appropriate, Mr. Frink?

03 MR. JOHNS: We can address some of that now.

04 CHAIRMAN CAFFREY: Depends on how the parties felt

05 about it, obviously.

06 MR. FRINK: I would say that everyone should understand

07 that, even if a settlement is reached among the parties, the

08 Board still has to be satisfied that the plans or elements

09 of the plans that it directs to be implemented, meet the

10 requirements of Decision 1631. And it is conceivable that

11 the parties may come up with a proposed settlement that

12 doesn't do something that the Board wants done or it is

13 conceivable that they propose that the Board oversee

14 something that the Board isn't interested in overseeing. It

15 can greatly, greatly shorten and simplify the procedure.

16 CHAIRMAN CAFFREY: That is what I meant by depends on

17 the settlement.

18 MR. FRINK: Even if a settlement is reached amongst the

19 parties, it is not the end of the process. The Board would

20 put out a proposed decision, and there would have to be a

21 Board meeting adopting it and so forth.

22 MS. BELLOMO: Proposed decision on the settlement? Or

23 decision on the settlement or --

24 MR. FRINK: They would put a proposed order on the

25 reclamation plan, maybe based very much on the settlement,

1258

01 if the Board decided that is the way to go.

02 If the Board decided that the settlement did not cover

03 a lot of things that it thought should be covered and it

04 wanted more evidence, it could resume the hearing. But we

05 wouldn't know that until the Board sees and can discuss the

06 settlement.

07 MS. BELLOMO: If there were a settlement that was a

08 settlement of some of the parties, but not all of the

09 parties, then what is the procedure here?

10 CHAIRMAN CAFFREY: Say potential procedure.

11 MS. BELLOMO: Would you go through --

12 CHAIRMAN CAFFREY: Some of the parties are -- let's

13 say some of the parties settled, and that could be brought

14 into the hearing record and other parties could examine it,

15 and the Board can take its final action considering the

16 settlement, giving weight of evidence to whatever way it

17 feels is appropriate.

18 MS. BELLOMO: We would go forward with the presentation

19 of the parties and their original testimony, those that had

20 not settled?

21 CHAIRMAN CAFFREY: Yes. In short, we would -- it

22 would somehow be folded into this proceeding. It might have

23 an impact on who would be interested at that point in

24 cross-examining or how much they would want to do. But we

25 would still see the process to the end, in some fashion.

1259

01 MS. BELLOMO: If there was a settlement signed by all

02 the parties, then would there be no further presentation of

03 evidence by those parties? For instance, our group would

04 then not present our testimony here, or would you go forward

05 and take all the testimony, enter it into the record that it

06 already has been offered?

07 CHAIRMAN CAFFREY: Again, it depends on the details of

08 the settlement. If you were to tell us today that all --

09 this is hypothetical. If you all would come and say, "Gee,

10 we think we are real close to something. We don't know what

11 value it is to continue going through the process that we

12 are going through now; we'd like a recess for a week or so

13 because we think we are going to be able to put this thing

14 on paper, and we think you are going to like it, Board." I

15 can't speak for Ms. Forster, but I think I would be amenable

16 to that.

17 The other thing I would not want to do, though, is I

18 would not want what we have done here thus far to get stale,

19 if you will. I would not want to give too much time.

20 Because, if things did not work out among the parties, we

21 might have to come back in here sooner than later and keep

22 all this going. We all have a lot invested in this. I just

23 don't want to throw this out. Some time, some hiatus would

24 be appropriate if we all agreed to it.

25 MR. JOHNS: It also might be helpful if the parties

1260

01 could dress through their stipulation, or perhaps outside of

02 that, how they wanted the rest of the hearing to go. It is

03 possible, for example, that we could rely on the written

04 testimony that has been presented, and not have to go

05 through the oral testimony and the cross and the rebuttal

06 and all that stuff. As you guys talk about those kinds of

07 actions, it would help us a lot to get input from you on how

08 you thought we should proceed from here.

09 MS. BELLOMO: I could ask of the other parties, do you

10 have rules of practice and procedure that govern settlement

11 procedures here?

12 MR. FRINK: Not really. I do have -- the Board has

13 that experience in one other instance in which a proposed

14 settlement was offered, and everybody thought that it

15 resolved everything. It turned out that it didn't, and the

16 status of the evidentiary record was left very unclear. I

17 don't think we want to get into that again. A number of the

18 exhibits and a lot of the testimony have already been

19 admitted into the record.

20 It would probably be helpful if, as a part of the

21 settlement proposal that the parties who made that,

22 stipulated to submit the remaining exhibits. That way we

23 wouldn't be in a bind if there were some loose ends that we

24 needed some evidence on.

25 MS. BELLOMO: That answers my question.

1261

01 Thank you.

02 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

03 Mr. Haselton, were you going --

04 Where is Mr. Haselton?

05 I think you wanted to speak, and then we will go to Mr.

06 Russi.

07 MR. HASELTON: I apologize for causing any delay.

08 CHAIRMAN CAFFREY: That's all right.

09 MR. HASELTON: I think I might have made a mistake in

10 using the term "horse trade" with my client who is a

11 cattleman, and they never use that term. It goes into a

12 whole different realm. Takes you literally.

13 MEMBER BROWN: You used the wrong species.

14 MR. HASELTON: I did. I've been hanging around with

15 those folks for a long time.

16 First of all, I want to extend my appreciation to Mr.

17 Birmingham, Mr. Dodge, Mr. Roos-Collins, Ms. Cahill for

18 taking the time to make sure we understood what their

19 thoughts are and concerns.

20 Our concern has always been, as kind of a unique party

21 of having access to this whole proceeding, and as I

22 understand it, please anybody interrupt me, as I understand

23 it, that this idea of a settlement is something that we are

24 being asked to agree with in principle. There is going to

25 be a set time frame until we see something in writing, to

1262

01 then which we may or may not commit to.

02 Is that correct?

03 UNIDENTIFIED VOICE: Correct.

04 MR. HASELTON: With that understanding, we do, on

05 behalf of my clients, the Arcularius Ranch and United Cattle

06 Company, to agree to those, that understanding.

07 With that, thank you.

08 CHAIRMAN CAFFREY: Thank you, Mr. Haselton.

09 Mr. Russi, did you have something? You were probably

10 another person that was out on the phone, I guess. Is that

11 right?

12 MR. RUSSI: I was talking on the phone, yes.

13 CHAIRMAN CAFFREY: Keep track in my head who is in and

14 who is about to come in, or whatever.

15 Go ahead.

16 MR. RUSSI: Thank you. I cannot say for certain here

17 today that BLM will agree to be part of the process. I can

18 only tell you that there is a high likelihood that once I

19 talk with people here in Sacramento tomorrow morning that I

20 will be instructed or someone will be instructed to become a

21 part of the process or proceeding towards reaching a

22 settlement.

23 As a public land agency, we are basically required to

24 enter into things like that. I think that is what is going

25 to happen for us.

1263

01 CHAIRMAN CAFFREY: We certainly want to give you time

02 to talk to your principals, and certainly Ms. Bellomo time

03 to talk to the people that she is representing. I just need

04 to raise the question with regard to the availability of

05 these witnesses.

06 Does it make any sense to at least finish this panel

07 tonight, so we can at least have a reasonable cutoff point

08 on the record? How about that? Or is there another

09 availability?

10 MR. DODGE: Peter and Scott will be back Wednesday

11 morning. I would like to finish with Larry Harrison.

12 MR. VORSTER: I wasn't going to be back Wednesday

13 morning.

14 MR. DODGE: That's right.

15 I would like to finish with --

16 CHAIRMAN CAFFREY: We have not yet heard from Ms.

17 Scoonover for cross-examination, nor from the City of Los

18 Angeles, Department of Water and Power, and then we would go

19 to potential of redirect and recross.

20 MR. DODGE: I think the most important thing is for the

21 People for the Preservation of Mono Basin to use their time

22 to consider their position. But, again, if people have

23 limited questions of Mr. Harrison, maybe we can at least

24 finish him.

25 CHAIRMAN CAFFREY: What that means, of course, is that

1264

01 if we don't proceed any further today, then we are,

02 obviously, going to have to come up with a new schedule,

03 with another day added, because -- is there a problem for

04 Mr. Mesick, as well? Maybe I am losing track of all of

05 this. If we don't finish with this panel today, and we

06 don't get to Mr. Mesick today, then, obviously, we are going

07 to have to add another day beyond Wednesday if, in fact, we

08 have to continue with the extended hearing, so to speak.

09 MR. ROOS-COLLINS: We have not yet started Cal Tout's

10 panel.

11 CHAIRMAN CAFFREY: Right.

12 MR. ROOS-COLLINS: Dr. Mesick is not available

13 tomorrow. He is available Wednesday. Dr. Stine is

14 available Wednesday morning. However, Mr. Vorster, who is

15 the third member of the panel, will not be available after

16 this afternoon on the remaining days we have designated this

17 week.

18 CHAIRMAN CAFFREY: Has anybody kept track of this. I

19 don't think I am available.

20 Ms. Forster.

21 BOARD MEMBER FORSTER: I have a question about how this

22 proceeds. If there are several parties that are working

23 towards an agreement on the settlement, why would they have

24 to continue to cross-examine and do that? Is it just to put

25 a closure on this. I mean, I can see why --

1265

01 CHAIRMAN CAFFREY: It really isn't necessary. Just an

02 attempt at practicality.

03 BOARD MEMBER FORSTER: I am not denying anybody. Maybe

04 they don't want to do it.

05 CHAIRMAN CAFFREY: That is why I am raising the

06 question. It is a question, if people are available. I

07 have no problem with adding another day or two for the

08 entire proceeding. I would like to hear from all of you.

09 We try to be accommodating. If people have other things to

10 do with their lives, I realize that.

11 Mr. Birmingham is going to help us out here. I just

12 feel it.

13 MR. BIRMINGHAM: I am not sure I will help you out. I

14 do have questions for this panel. But the reason that I

15 jumped up at 2:00 this afternoon and asked for the recess

16 was because I am confident that we will reach an agreement

17 which, ultimately, the Board will like. And I don't see any

18 purpose in going forward with the cross-examination of any

19 witnesses if the prospects of reaching an agreement is good.

20 And from my perspective and, I think, Mr. Dodge and the

21 other lawyers who have been involved, will agree that there

22 is very good prospect.

23 CHAIRMAN CAFFREY: Let me put it this way, if anybody

24 has a compelling need to continue with the cross-examination

25 of these witnesses, understanding full well that if we don't

1266

01 come to an agreement, we may have to add extra days.

02 Any problem with that anywhere?

03 MS. BELLOMO: I just have one comment.

04 CHAIRMAN CAFFREY: Yes, Ms. Bellomo.

05 MS. BELLOMO: Which probably can be accommodated,

06 given everyone's schedule here, which is, that in the event

07 that we don't reach settlement, I don't have any problem

08 with the idea of going forward with additional days. But

09 could we stick with tomorrow, my husband and I testifying?

10 I am not sure that he will be able to come back again after

11 these three days. And it sounds like, tomorrow, many people

12 aren't available, anyway. Would that be possible if we

13 don't reach settlement and if we don't continue on later

14 today?

15 CHAIRMAN CAFFREY: Well, I think what we might do, we

16 are all here now, anyway. I presume we are all going to be

17 here in the morning. Why don't we do this, why don't we all

18 -- you are going to talk to your people, the people you

19 represent tonight, and maybe that is a question that won't

20 need to be answered tomorrow morning, and maybe what I

21 should is maybe we will already have the answer to that by

22 the reaction that you get. If we all come back here

23 tomorrow morning at 9:00, we'll hear from you first, Ms.

24 Bellomo, on how things went with your folks and maybe that

25 will give us some enlightenment on how to proceed.

1267

01 MS. BELLOMO: Could I ask who will be available

02 tomorrow to testify, if, in the event we go forward, so we

03 have some idea if we are testifying tomorrow, if we don't

04 settle?

05 CHAIRMAN CAFFREY: Well, my understanding is that Mr.

06 Vorster and Dr. Stine will not be here tomorrow. Mr.

07 Harrison will not be here tomorrow; is that correct?

08 MR. HARRISON: Can be here tomorrow.

09 CHAIRMAN CAFFREY: You can be, sir? All right.

10 MR. HARRISON: It is up to Bruce.

11 CHAIRMAN CAFFREY: It would mean that the staff is

12 going to have look at the schedule again and make sure that

13 we have everybody covered. We will be as accommodating as

14 we can.

15 Mr. Frink or Mr. Johns, excuse me.

16 MR. JOHNS: Actually, we could start out tomorrow as

17 set forth in the February 10th memo. We can start with

18 Terry Russi, finish off with the cross of Terry, and then

19 Ms. Bellomo and then take up Fish and Game. Skip over the

20 parties that are currently in agreement and perhaps put off

21 Fish and Game, depending on how they wanted to proceed. If

22 they want to present their case until after they solve what

23 happened with the negotiations. We could finish off Terry

24 and get into the Bellomos tomorrow, if that is agreeable.

25 CHAIRMAN CAFFREY: My understanding is that everybody

1268

01 is going to be here tomorrow except certain members of this

02 panel and Mr. Mesick; is that right?

03 So, we will just do the best we can from there. The

04 schedule is what it is. We will hear from Ms. Bellomo

05 tomorrow, and then we will see where we are. And if we have

06 to proceed, we will fashion it as best we can.

07 Mr. Dodge.

08 MR. DODGE: Does the Chairman wish Mr. Harrison to come

09 back tomorrow or when this panel finishes up?

10 CHAIRMAN CAFFREY: Well, I had this sense of order. I

11 get the distinct feeling that nobody wants to finish today

12 when I asked a little while ago. I don't know. I leave

13 that up to somebody wiser than myself. I am flexible.

14 MR. DODGE: I would suggest that Mr. Harrison not come

15 back tomorrow, and we start with Mr. Russi tomorrow.

16 CHAIRMAN CAFFREY: All right. Any objection with that?

17 Any problems with that?

18 MS. BELLOMO: Followed by the Bellomos?

19 CHAIRMAN CAFFREY: Sorry?

20 MS. BELLOMO: Does Mr. Dodge mean, followed by the

21 Bellomos?

22 MR. DODGE: I would be happy to have the Bellomos come

23 next.

24 CHAIRMAN CAFFREY: All right.

25 You sure you want to ask? Go ahead, Mr. Haselton.

1269

01 MR. HASELTON: So, following the schedule, then am I

02 to understand that Mr. Russi and after the Bellomos, but

03 then Fish and Game will not present a panel? Is that my

04 understanding?

05 MR. DODGE: Time permitting, we will go forward.

06 CHAIRMAN CAFFREY: We will just forge ahead tomorrow if

07 we don't have strong principles in agreement.

08 Hang on just a moment.

09 (Discussion held off record.)

10 CHAIRMAN CAFFREY: Back on the record.

11 Thank you, ladies and gentlemen, for your indulgence.

12 We'll be back tomorrow 9:00, and we will hear from Ms.

13 Bellomo, and we will proceed in the order we discussed a

14 moment ago.

15 Mr. Roos-Collins.

16 MR. ROOS-COLLINS: There are two parties you have not

17 heard from, Trust for Public Land and Dr. Ridenhour. We

18 have calls into them to determine their willingness to

19 follow the process we have discussed.

20 CHAIRMAN CAFFREY: Thank you, sir. And then you will

21 perhaps give us some feedback tomorrow morning, as well.

22 Thank you all for your patience. See you at 9:00 a.m.

23 MR. BIRMINGHAM: Thank you.

24 (Hearing adjourned at 4:20 p.m.)

1270

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 1114 through

14 1269 herein constitute a complete, true and correct record

15 of the proceedings.

17 IN WITNESS WHEREOF, I have subscribed this certificate

18 at Sacramento, California, on this

19 6th day of March 1997.

24 ______________________________

24 ESTHER F. WIATRE

25 CSR NO. 1564