Jan. 30, 1997 Restoration Hearing

0607

02 STATE WATER RESOURCES CONTROL BOARD

04 PUBLIC HEARING

07 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

07 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

08 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

08 THE REQUIREMENTS OF WATER RIGHT DECISION 1631

14 HELD AT:

15 STATE WATER RESOURCES CONTROL BOARD

15 PAUL BONDERSON BUILDING

16 901 P STREET, FIRST FLOOR HEARING ROOM

16 SACRAMENTO, CALIFORNIA

19 THURSDAY, JANUARY 30, 1997

19 9:00 A.M.

24 Reported by: ESTHER F. WIATRE

25 CSR NO. 1564

0608

01 APPEARANCES

01 BOARD MEMBERS:

02 JOHN CAFFREY, CHAIRMAN

03 JOHN W. BROWN

03 JAMES STUBCHAER (Not present.)

04 MARY JANE FORSTER

04 MARC DEL PIERO (Present a.m. only)

05 STAFF MEMBERS:

06 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

07 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

07 MELANIE COLLINS, STAFF ENGINEER

08 COUNSEL:

09 DAN FRINK

10 LOS ANGELES DEPARTMENT OF WATER AND POWER:

11 PANEL MEMBERS:

12 PETER KAVOUNAS

13 BRIAN TILLEMANS

13 JAMES R. PERRAULT

14 BRIAN N. WHITE

15 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

15 400 Capitol Mall, 27th Floor

16 Sacramento, California 95814

16 BY: THOMAS W. BIRMINGHAM, ESQ.

17 and

17 JANET GOLDSMITH, ESQ.

18 UNITED STATES FOREST SERVICE:

19 UNITED STATES DEPARTMENT OF AGRICULTURE

20 OFFICE OF GENERAL COUNSEL

20 33 New Montgomery, 17th Floor

21 San Francisco, California 94105

21 BY: JACK GIPSMAN, ESQ.

22 PANEL:

23 ROGER PORTER

0609

01 APPEARANCES

02 BUREAU OF LAND MANAGEMENT:

03 UNITED STATES DEPARTMENT OF THE INTERIOR

03 BUREAU OF LAND MANAGEMENT

04 BISHOP RESOURCE AREA

04 785 North Main Street, Suite E

05 Bishop, California 93514

05 BY: TERRY L. RUSSI

06 PEOPLE FOR MONO BASIN PRESERVATION:

07 KATHLEEN MALONEY BELLOMO

08 P.O. Box 201

08 Lee Vining, California 93541

09 ARCULARIUS RANCH:

10 FRANK HASELTON, LSA

11 1 Park Plaza, Suite 500

11 Irvine, California 92610

12 RICHARD RIDENHOUR:

13 RICHARD RIDENHOUR

14 CALIFORNIA TROUT, INC.:

15 NATURAL HERITAGE INSTITUTE

16 114 Sansome Street, Suite 1200

16 San Francisco, California 94014

17 BY: RICHARD ROOS-COLLINS, ESQ.

18 CALIFORNIA DEPARTMENT OF FISH AND GAME:

19 NANCEE MURRAY, ESQ.

20 1416 Ninth Street

20 Sacramento, California 95814

21 McDONOUGH HOLLAND & ALLEN

22 555 Capitol Mall, Ninth Floor

22 Sacramento, California 95814

23 BY: VIRGINIA A. CAHILL, ESQ.

0610

01 APPEARANCES

02 CALIFORNIA STATE LANDS COMMISSION:

02 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

03 MARY J. SCOONOVER, ESQ.

04 1300 I Street

04 Sacramento, California 95814

05 MICHAEL VALENTINE

06 NATIONAL AUDUBON SOCIETY:

07 MONO LAKE COMMITTEE:

08 MORRISON & FOERSTER

08 425 Market Street

09 San Francisco, California

09 BY: F. BRUCE DODGE, ESQ.

10 HEIDE HOPKINS

11 GREG REISE

11 PETER VORSTER

13 ---oOo---

0611

01 INDEX

02 PAGE

03 LOS ANGELES DEPARTMENT OF WATER AND POWER

04 (WATERFOWL HABITAT RESTORATION PANEL)

05 CROSS-EXAMINATION

06 BY MR. DODGE 622

06 BY BOARD STAFF 650

07 BY BOARD MEMBERS 669

08 REDIRECT EXAMINATION

09 BY MR. BIRMINGHAM 672

10 RECROSS EXAMINATION

11 BY MS. SCOONOVER 693

11 BY MR. DODGE 697

12 BY BOARD STAFF 699

13 UNITED STATES FOREST SERVICE

14 (ROGER PORTER)

15 DIRECT EXAMINATION

16 BY MR. GIPSMAN 703

17 CROSS-EXAMINATION

18 BY MR. BIRMINGHAM 723

19 BY MS. BELLOMO 735

19 BY MR. ROOS-COLLINS 784

20 BY MS. MURRAY 787

20 BY MS. SCOONOVER 790

21 BY MR. DODGE 792

21 BY BOARD STAFF 797

22 BY BOARD MEMBERS 800

0612

01 INDEX

02 PAGE

03 BUREAU OF LAND MANAGEMENT

04 (TERRY RUSSI)

05 DIRECTION TESTIMONY

06 BY MR. RUSSI 806

07 CROSS-EXAMINATION

08 BY MR. BIRMINGHAM 813

08 BY MS. BELLOMO 814

09 BY MR. ROOS-COLLINS 834

10 ---oOo---

12 AFTERNOON SESSION 703

0613

01 SACRAMENTO, CALIFORNIA

02 THURSDAY, JANUARY 30, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning, again, and welcome. I

05 will resume the hearing. Before we proceed with the

06 cross-examination of the waterfowl panel, I see Ms. Bellomo

07 has risen.

08 Do you wish to address the Board?

09 Good morning, welcome.

10 MS. BELLOMO: Thank you.

11 Yes, Mr. Chairman and Members of the Board. I have a

12 procedural matter that I want to raise this morning.

13 Because scheduling has become an issue, I thought I should

14 raise it now because the outcome of your ruling on this

15 procedural ruling could affect the scheduling.

16 I wanted to bring it to the attention of the Water

17 Board that after the extension of time was granted for the

18 parties to submit their testimony and the Board's rulings

19 specifically ordered that or perhaps came from Mr. Anton, I

20 don't know who issued the notice, specifically ordered that

21 all parties were to make sure that testimony was delivered

22 to the other parties by 5:00 p.m. on Friday, the 17th of

23 January.

24 Several parties did not deliver their testimony to the

25 people from Mono Basin Preservation, which resulted in some

0614

01 significant prejudice to us. We have not received the

02 testimony on the timely basis. And, specifically, we did

03 not receive the testimony of the State Lands Commission, the

04 State Department of Parks and Recreation until the following

05 Tuesday, one week prior to the hearing. It was due on

06 Friday. We received it on a Tuesday.

07 The prejudice to us was that, not only did we know that

08 Mr. Stine's testimony was going to be a linchpin of many

09 other people's testimony, but that was a three-day weekend

10 where we had arranged to have members of the community

11 waiting to read the testimony. We waited Friday, and it

12 didn't come. We waited Saturday, and it didn't come. We

13 knew it wouldn't come Sunday. We waited Monday, and it

14 didn't come. On Tuesday, when everyone had returned to

15 their employment, Tuesday afternoon, we received the

16 testimony.

17 We are very disturbed by this because we made Herculean

18 effort in after hours from our jobs to get our testimony

19 served on the parties on a timely basis, so that it was sent

20 overnight mail Wednesday because there was guaranteed

21 overnight mail delivery from Mono County. But everyone

22 received our testimony on time. With far less resources, we

23 succeeded in doing this.

24 We appreciate the fact that some of the parties, two of

25 the parties, contacted us to ask would it be okay if we get

0615

01 their testimony late. Mono Lake Committee managed to have

02 someone drive from Sacramento and deliver it to our home by

03 8:00. I think it was on Friday evening. It was

04 appreciated. We heard nothing from the State Lands

05 Commission and State Parks and Recreation. We had no one to

06 contact over the weekend. I don't know counsel for -- know

07 how to reach counsel for that agency. Plus, it wasn't our

08 responsibility.

09 So I'm, basically, observing that in some form the

10 proper sanction of this would be exclusion of the testimony

11 of the parties that did not follow the procedural

12 requirement set out by the Board. I am not familiar with

13 your rules, and I don't know what you consider to be the

14 appropriate sanction in this situation that I am bringing to

15 your attention.

16 CHAIRMAN CAFFREY: Well, thank you for that.

17 Is this a problem for any of the other parties?

18 I know that there has been, or I heard, there has been

19 some difficulty sometimes with the weather and getting

20 things over to -- getting across on the Sierras, from the

21 eastern to the western side, so to speak, with mail or

22 special delivery.

23 Ms. Scoonover, did you have something that you wanted

24 to add before I decide?

25 MS. SCOONOVER: Yes.

0616

01 Mr. Caffrey, Members of the Board, this is the first

02 that we have heard that the testimony did not arrive within

03 the required time limit. I have no idea what the problem

04 was. I will certainly look into it. I apologize to Ms.

05 Bellomo and People for Mono Basin. It was not out intent to

06 delay. There have been problems in the past. There are

07 some testimony, some exhibits, that we sent by overnight

08 mail to the Mono Lake, to the State Reserve during, the

09 course of hearing two years ago that still hasn't arrived.

10 It is not unusual. I thought I had remedied the problem by

11 switching overnight couriers. I don't know what the problem

12 is, but I will certainly look into it. I apologize.

13 CHAIRMAN CAFFREY: Appreciate your comments. I will

14 tell you what I am inclined to do. As you know, Ms.

15 Bellomo, we are extending the number of days that we are

16 going to be about this very important subject. How many

17 days again was it that you -- how many days late actually is

18 your --

19 MS. BELLOMO: It arrived on Tuesday at the end of the

20 day, and it was due on Friday.

21 CHAIRMAN CAFFREY: You missed the benefit of a

22 three-day weekend when your livelihood takes you elsewhere.

23 MS. SCOONOVER: Mr. Caffrey, I also believe there is

24 no possible way our witnesses will be heard today.

25 CHAIRMAN CAFFREY: I was going to say, I am not going

0617

01 to exclude the exhibits or the evidence. But what we can

02 do, if we get to the point where this is a problem for you

03 in presenting your direct, and since nobody else seems to

04 have had this experience with this particular set of

05 exhibits, what we can do is move you a little bit further

06 down the list so that you would hopefully have had ample

07 time.

08 What I will ask you to do, Ms. Bellomo, if we get to

09 you for direct today, which I doubt will be the case, but

10 you never now --

11 MR. FRINK: We should.

12 CHAIRMAN CAFFREY: You think we would? Maybe we ought

13 to just skip over you, if that is helpful, and take you up

14 in the two days that we'll be setting somewhere in,

15 probably, I am going to say at this point, in mid February,

16 probably,

17 MS. BELLOMO: I will be preparing for the Forest

18 Service, cross-examination of the Forest Service and the BLM

19 witnesses. They are really not in depth.

20 CHAIRMAN CAFFREY: I am talking about -- I don't see

21 them. Am I creating a problem here because I was talking

22 about direct. You are talking about you have a problem in

23 the cross-examination, as well.

24 MR. FRINK: Mr. Chairman.

25 CHAIRMAN CAFFREY: Mr. Frink.

0618

01 MR. FRINK: The only reason that receiving the State

02 Lands' evidence would prejudice the People for Mono Basin

03 Preservation is that if they did have to proceed with the

04 cross-examination of those witnesses. I don't believe that

05 we are going to even reach the State Lands' witnesses

06 today. The direct evidence of all the parties is not

07 supposed to involve rebutting the direct evidence of the

08 other parties. The rebuttal phase of the hearing comes at a

09 later time. It could have been problem if we proceeded to

10 complete the hearing in three days. As it looks now, I

11 don't see how anyone is prejudiced by a week delay in

12 receiving evidence that isn't going to be presented for a

13 couple more weeks.

14 CHAIRMAN CAFFREY: Thank you, Mr. Frink.

15 We have Mr. Birmingham first and then Mr.

16 Roos-Collins.

17 MR. BIRMINGHAM: My comments, I believe, are similar to

18 Mr. Frink's. I don't understand how the failure to receive

19 the State Lands Commission's testimony would prejudice the

20 People from Mono Basin Preservation with respect to the

21 presentation of their direct testimony. We are prepared to

22 go forward with our cross-examination with that testimony

23 and prepared for that.

24 CHAIRMAN CAFFREY: Let's go to Mr. Roos-Collins, and we

25 will come back to you, Ms. Bellomo.

0619

01 Do you have something you want to add, sir?

02 MR. ROOS-COLLINS: Mr. Chairman, I concur with Mr.

03 Frink and Mr. Birmingham as an additional reason, to

04 maintain the current order for direct examination. But I

05 won't offer if the people do not wish to change that order.

06 CHAIRMAN CAFFREY: I am sorry, couldn't hear all of you

07 what said. Maybe my hearing is failing in my old age.

08 MR. ROOS-COLLINS: I agree with Mr. Frink and Mr.

09 Birmingham that we should preserve the order for

10 presentation of cases. The additional reason I have is that

11 one my witnesses is more than several hours away. I have

12 scheduled him to be available for late afternoon, in the

13 event that Cal Trout is called to present its case. If you

14 remove the people from the current order, it may be

15 difficult to get him here on time.

16 CHAIRMAN CAFFREY: Those are points well made.

17 MS. BELLOMO: Could I clarify something, Mr. Chairman?

18 CHAIRMAN CAFFREY: Yes, please.

19 MS. BELLOMO: It was not my intent to request that the

20 People from Mono Basin Preservation delay their presentation

21 today. In fact, we are very eager to go forward and would

22 be very disappointed if we haven't presented our case by the

23 end of day. I actually wanted to point out to the Board

24 that this serious problem had arisen and that it might be --

25 I don't know your rules. I don't know what kinds of

0620

01 sanctions are appropriate.

02 I really feel that it is missing the point if people

03 don't understand that we were prejudiced by not being able

04 to have our group members review all of the testimony in

05 this proceeding before we came here. Because as Mr.

06 Kavounas pointed out yesterday, the DWP plan itself has --

07 the scientists have, you know, seems like scores of

08 references in the science testimony. It was very important

09 for us to find out what the State Lands Commission's final

10 position was.

11 Yes, I feel it did prejudice us or handicap us in even

12 our preparation of the cross-examination of the DWP's

13 witnesses. We didn't make issue of it yesterday, but I was

14 waiting to raise it until it was appropriate to State Lands

15 Commission. It wasn't the Department of Water and Power's

16 responsibility or problem. It did affect us.

17 CHAIRMAN CAFFREY: Mr. Birmingham.

18 MR. BIRMINGHAM: If, in fact, the People from Mono

19 Basin Preservation have been prejudiced in their

20 cross-examination of this panel, this panel can be available

21 later for further cross-examination by this particular

22 party. We don't want to deprive them of the opportunity for

23 meaningful cross-examination. We are happy to do that.

24 CHAIRMAN CAFFREY: I appreciate that gesture. I am

25 trying to bend over backwards, probably to the frustration

0621

01 of a lot of the parties, to be fair to everybody. I am

02 certainly concerned about your rights and the fact that you

03 are here certainly in competition with your own situation,

04 and as a private party, it is difficult for you to travel.

05 But I think the arguments of Mr. Frink and Mr. Birmingham

06 and Mr. Roos-Collins and my earlier statement that we have

07 quite a time extension in this proceeding, that we go ahead,

08 that we note your concern, that we will accommodate you, if

09 further down the way in the process there appears to have

10 been an unfairness or unjustice.

11 We had a similar situation with Mr. Dodge a few days

12 ago, where he was concerned about not having enough time to

13 review some of the exhibits, and at that time I ruled that

14 we recognized it may be a little difficult, but we are going

15 to keep moving. I do appreciate your concern. Hopefully

16 the extension of time will help you out.

17 MS. BELLOMO: Thank you very much.

18 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo, for bringing

19 it to our attention.

20 With that, let's move to the cross-examination by Mr.

21 Dodge of the waterfowl panel.

22 Good morning, Mr. Dodge.

23 MR. DODGE: Good morning.

24 ---oOo---

25 //

0622

01 CROSS-EXAMINATION

02 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE

03 BY MR. DODGE

04 MR. DODGE: Good morning, Mr. Kavounas.

05 MR. KAVOUNAS: Good morning, Mr. Dodge.

06 MR. DODGE: I have a few questions about your plan.

07 At Page 1 of your testimony, your waterfowl plan, you

08 talk about rewatering Rush Creek distributaries?

09 MR. KAVOUNAS: Yes, sir.

10 MR. DODGE: Is that still part of your plan?

11 MR. KAVOUNAS: Yes, sir.

12 MR. DODGE: At Page 92 of the scientists' plan, they

13 say:

14 We envisioned that many depressional sites in

15 the bottomlands will be rewatered by

16 increasing the water table in the floodplain

17 through natural processes. However, periodic

18 (three-year intervals) assessment should be

19 conducted, and those secondary channels and

20 depressional areas that have not recovered

21 naturally should be evaluated from a

22 mechanical reopening to restore additional

23 waterfowl habitat. (Reading.)

24 Is that future evaluation part of your plan, sir?

25 MR. KAVOUNAS: Not explicitly so.

0623

01 MR. DODGE: Would you be agreeable to making it part of

02 your plan?

03 MR. KAVOUNAS: Yes.

04 MR. DODGE: On Page 2 of your testimony, you talk about

05 the DeChambeau/County Ponds/Black Point part of the

06 proposal. As I understand your testimony, going forward on

07 that is conditional on outside funding?

08 MR. KAVOUNAS: That is right.

09 MR. DODGE: You say on Page 2:

10 It does not warrant the expense. (Reading.)

11 Would you agree with me that the scientists strongly

12 recommended going forward with this County Ponds project?

13 MR. KAVOUNAS: No.

14 MR. DODGE: At Page 90 of their report, the scientists

15 say:

16 If completed the entire DeChambeau

17 Pond/County Pond complex can provide 45 acres

18 of semi-permanent or seasonal fresh water

19 wetlands, 22 acres of the wet seasonal

20 meadow, and 10 acres of riparian habitat for

21 waterfowl and other wildlife. Although

22 requiring active management, this habitat

23 complex will provide critical waterfowl

24 habitat to the Basin and mitigate for the

25 loss of fresh water and lagoonal habitat not

0624

01 restored at the target lake level of 6392

02 feet. These projects would produce one of

03 the best waterfowl complexes in the Basin and

04 was highly recommend by Smith, Dom & Vestal.

05 A great diversity of waterfowl and shore bird

06 species would use this complex.

07 (Reading.)

08 Now, among other things, the scientists talked about

09 this habitat as critical waterfowl habitat, one of the "best

10 waterfowl complexes in the basin."

11 Does that not seem like high praise to you?

12 MR. KAVOUNAS: No, sir. Can I explain?

13 MR. DODGE: I am sure Mr. Birmingham will ask you to do

14 that on cross-examination.

15 You indicated yesterday there were certain problems

16 with the DeChambeau Ponds, correct?

17 MR. KAVOUNAS: Yes, sir.

18 MR. DODGE: Do you understand that those problems are

19 being cured?

20 MR. KAVOUNAS: With the Phase I of the project?

21 MR. DODGE: Let me ask a different question.

22 Do you understand that the problem was that the ponds

23 were not holding water?

24 MR. KAVOUNAS: That is my understanding, yes.

25 MR. DODGE: Do you understand that is in the process of

0625

01 being cured?

02 MR. KAVOUNAS: No, sir.

03 MR. DODGE: You don't.

04 If the problems were cured with the DeChambeau project,

05 would you be prepared to go ahead with the County Ponds

06 proposal?

07 MR. KAVOUNAS: Once again, the success or failure of

08 DeChambeau Pond on the first phase was not particularly one

09 of our concerns in allowing or not -- excuse me, in

10 recommending or not, the DeChambeau/County Ponds/Black Point

11 project.

12 MR. DODGE: If I understand that correctly, regardless

13 of whether DeChambeau is cured, your position would be that

14 going forward with County Ponds is dependent on outside

15 funding?

16 MR. KAVOUNAS: That is correct. What is also correct

17 is that the fact at the TAG meeting the parties asked us to

18 proceed with caution and phase it, not only from the

19 perspective of the excessive leakage, information that was

20 gathered from the first phase, but also from the perspective

21 of water supply.

22 I would like to also add that in the process that we

23 have gone through in the last year or so, it became more

24 clear, in my mind, that the water supply to the

25 DeChambeau/County Ponds complex is integrally tied with the

0626

01 Mill and Wilson projects.

02 MR. DODGE: Haven't you heard Dr. Reid testify that

03 what we should is drill a test hole and try to get artesian

04 sources for that projects.

05 MR. KAVOUNAS: I believe it is in his written testimony

06 that he suggests we seek artesian flow. But I believe Dr.

07 Reid is not very qualified to speak on geohydrology matters.

08 I think if you were to evaluate the area, you would find the

09 artesian flow in that area would be impacted by surface

10 hydrologies.

11 MR. DODGE: If we could get artesian flow to take care

12 of the County Ponds project, hypothetically, would DWP be

13 prepared to go forward with the County Ponds project and to

14 fund it?

15 MR. KAVOUNAS: If you can get sustainable artesian

16 flow, the Department's position at this point in time, is

17 still that the benefit that you get for spending a million

18 bucks is not warranted.

19 MR. DODGE: Not even by what is called the critical

20 waterfowl habitat?

21 MR. KAVOUNAS: That is the definition that is given in

22 their plan, yes. But I don't necessarily agree with that.

23 MR. DODGE: You don't necessarily agree that is

24 critical waterfowl habitat?

25 MR. KAVOUNAS: That's correct.

0627

01 MR. DODGE: But yesterday you told us you were relying

02 on the three scientists for their expertise?

03 MR. KAVOUNAS: I didn't say I agree with that, with

04 their opinions. As a matter of fact, I believe I explicitly

05 stated that I did not agree with them, and the consultants I

06 relied, outside of the three scientists, did not necessarily

07 agree with the plan as proposed by the three scientists.

08 MR. DODGE: Let me ask you about Black Point scrapes.

09 Yesterday you were asked, I believe by Ms. Cahill, about

10 whether you proposed scrapes, and you indicated that due to

11 concerns by the State Lands Commission that you were not

12 proposing scrapes, correct?

13 MR. KAVOUNAS: That is correct. Maybe I didn't add to

14 that. I don't remember whether I did or not. As Ms.

15 Scoonover pointed out, mechanical means were not highly

16 valued in the guidelines that were identified early on in

17 the process. Scrapes were considered as such.

18 MR. DODGE: Do you recall what the scientists

19 recommended on scrapes?

20 MR. KAVOUNAS: Not specifically. I do recall that in

21 subsequent conversations, Dr. Drewien gave a lot of praise

22 to scrapes, but I am not sure they're as highly acclaimed in

23 their plan.

24 MR. DODGE: At Page 88, isn't it a fact, sir, that at

25 the bottom of Page 88, the scientists propose testing or

0628

01 exploring the feasibility of two to five shallow scrapes?

02 MR. KAVOUNAS: Yes.

03 MR. DODGE: One was proposed at Black Point?

04 MR. KAVOUNAS: I believe that was a component of the

05 DeChambeau/County Ponds/Black Point project.

06 MR. DODGE: Black Point is not a State Lands Commission

07 property, is it?

08 MR. KAVOUNAS: I am not sure whether it is or not.

09 MR. DODGE: If it were not State Lands Commission

10 property, would you propose a feasibility of Black Point?

11 MR. KAVOUNAS: Yes. In the phased manner we were asked

12 to do so by the parties.

13 MR. DODGE: Let's go to Mill Creek, Page 1 of your

14 testimony -- I am sorry, Page 2 of your testimony. You say:

15 While the entire flow of Mill Creek, if returned

16 to its natural course, would benefit the entire

17 Mill Creek ecosystem, the waterfowl habitat

18 aspects of it is minimal. (Reading.)

19 You told us yesterday that you replied on Dr. Jehl and

20 Dr. Stine for that?

21 MR. KAVOUNAS: No, I did not, sir.

22 MR. DODGE: I believe you did, but I will withdraw that

23 comment. Let me ask you: Did any of the three waterfowl

24 scientists that you hired ever tell you that the waterfowl

25 habitat aspects of it was minimal?

0629

01 MR. KAVOUNAS: No, they did not. They did not assign

02 any value to it, nor did they assign a value to the entire

03 Mill Creek ecosystem.

04 MR. DODGE: Let me read you further from your testimony

05 at Page 2:

06 Although some parties would like LADWP to

07 return the entire flow of Mill Creek to its

08 natural course, LADWP has neither the ability

09 nor the obligation to do so. (Reading.)

10 Do you see that, sir?

11 MR. KAVOUNAS: Yes, sir.

12 MR. DODGE: You talk about ability and obligation. Let

13 me take obligation first.

14 Would you agree that ultimately it is not for you or me

15 to decide the obligation, but for State Water Board to

16 decide?

17 MR. KAVOUNAS: What is in my testimony are my

18 opinions. In my testimony, I say that the plan is good or

19 that I have an opinion that the Department does not have an

20 obligation, I believe that it is clear that that is my

21 opinion. I would not even dream of telling the State Board

22 what to do.

23 MR. DODGE: All I am saying is -- I am not questioning

24 that, sir. All I am saying is the question of whether an

25 obligation exists is ultimately a question for the State

0630

01 Board.

02 MR. KAVOUNAS: Are you questioning me that? I believe

03 I have answered it. Yes, the State Board has the ultimate

04 jurisdiction.

05 MR. DODGE: You tell us at Page 4 of your testimony

06 that Los Angeles:

07 Is responsible for the cost of mitigation of

08 its actions. (Reading.)

09 Do you recall that testimony?

10 MR. KAVOUNAS: Not directly, but I'll take your word

11 for it. Where is it?

12 MR. DODGE: It is on Page 4, right there in the

13 middle.

14 It is LADWP's belief that it is responsible

15 for the cost of mitigation of its actions.

16 (Reading.)

17 Do see that?

18 MR. KAVOUNAS: Yes.

19 MR. DODGE: Would you agree with me that the bottomland

20 of Rush Creek -- many acres of the bottomland of Rush Creek

21 are lost irretrievably due to incision?

22 MR. KAVOUNAS: I have no opinion on that.

23 MR. DODGE: Assume it is true. Hypothetically, assume

24 that many acres of the bottomland of Rush Creek are

25 irretrievably lost to incision.

0631

01 Would you agree that it might be reasonable to mitigate

02 for that by restoring the Mill Creek bottomland?

03 MR. KAVOUNAS: No, no. The Department had nothing to

04 do with the degradation of Mill Creek.

05 MR. DODGE: First point you made in your testimony was

06 the ability. You talked about obligation. Now let's talk

07 about ability to restore. Let me ask you this, sir:

08 Assuming that DWP were: to purchase the Conway Ranch

09 water, one; two, persuade the United States Forest Service

10 to send its water rights on the DeChambeau Ranch down to

11 Mill Creek; and three, upgrade the return ditch that runs

12 from Lundy Power House to Mill Creek to 70 cfs. If those

13 three things were done, would the entire flows be returned

14 to Mill Creek?

15 MR. KAVOUNAS: No, sir.

16 MR. DODGE: Why is that wrong?

17 MR. KAVOUNAS: Because the Simis water right at 1.8 cfs

18 would still be there.

19 MR. DODGE: That is correct, the 1.8 water right

20 assignment would be there. Putting the Simis right aside,

21 would those three elements accomplish the full rewatering of

22 Mill Creek?

23 MR. KAVOUNAS: If the Department were to purchase the

24 Conway water right and persuade the Forest Service to give

25 up their water right --

0632

01 MR. DODGE: And expand the return ditch?

02 MR. KAVOUNAS: -- and expand the return ditch?

03 MR. DODGE: Yes.

04 MR. KAVOUNAS: It is my opinion that it would still not

05 be possible.

06 MR. DODGE: Why is that?

07 MR. KAVOUNAS: Because taking the water away from Ranch

08 Conway would have an impact on Conway Ranch, and it is my

09 opinion that if an environmental review processes were to go

10 forward, that would not be permitted.

11 MR. DODGE: I am not asking whether it is legally

12 permitted. I understand that there are legal process to go

13 through. I am just asking you the physical question, sir,

14 the physical question.

15 MR. KAVOUNAS: Yes, in answer to your question, in a

16 physical sense that would be one way of doing it, yes.

17 MR. DODGE: So, physically, if you purchase the Conway

18 water rights, persuade the Forest Service to bring its water

19 back to Mill Creek, and upgrade the return ditch to 70 cfs,

20 physically it is possible to wholly rewater Mill Creek?

21 MR. KAVOUNAS: And get the appropriate decision makers

22 to go along with it. That is also a physical requirement.

23 MR. DODGE: Go through the EIR process and get the

24 decision.

25 MR. KAVOUNAS: Yes.

0633

01 MR. DODGE: But, physically, those three things would

02 do it?

03 MR. KAVOUNAS: I really believe that getting through

04 any EIR is physical process is also a physical process.

05 MR. DODGE: I will grant you that.

06 MR. KAVOUNAS: Thank you. Will you also grant me that

07 there is another way to do it? I mean, if you want to talk

08 about a physical solution, the Department could conceivably

09 purchase the Lundy Power Plant, conceivably purchase all the

10 facilities that Edison has and remove all of Edison's

11 impacts from the Basin or in this particular watershed.

12 MR. DODGE: Is the Lundy Power Plant for sale?

13 MR. KAVOUNAS: It is my understanding from speaking

14 with Bert Almond from Edison, that if they were required to

15 spend any money, that the Lundy Power Plant is so marginal

16 that they would have to close it down.

17 MR. DODGE: One of the rules is you have to answer my

18 question.

19 Is the Lundy Power House for sale?

20 MR. KAVOUNAS: Not right now.

21 MR. DODGE: Is the Conway Ranch for sale?

22 MR. KAVOUNAS: I don't know.

23 MR. DODGE: You don't know?

24 MR. KAVOUNAS: I was told by -- what is the name of the

25 guy that used to be the partner in Conway?

0634

01 -- Mr. Fredrickson, that "He gets a phone call every

02 week about developing that property." If I had a piece of

03 property that I get a phone call every week on developing, I

04 am not sure I'd want to sell it.

05 MR. DODGE: It is a simple question, sir: Is it on the

06 market? Is it being offered on the market for sale?

07 MR. KAVOUNAS: I don't know if it is on the market.

08 TPL has an option to purchase it. Does that put it on the

09 market? Does that mean it's on the market? That means that

10 TPL has an option to purchase it.

11 MR. DODGE: It also means they are interested in

12 selling it, doesn't it?

13 MR. KAVOUNAS: To TPL, yes.

14 MR. DODGE: Mr. Perrault, good morning.

15 MR. PERRAULT: Good morning.

16 MR. DODGE: DWP's application for Mill Creek water, as

17 I understand it, is from -- you're asking for 16 cfs from

18 October 1 to April 30. Correct?

19 MR. PERRAULT: That's correct.

20 MR. DODGE: The 16 cfs, how was that chosen, sir?

21 MR. PERRAULT: How was 16 cfs chosen? 16 cfs was

22 chosen because, number one, water rights during the --

23 excuse me, not water rights, the availability of water

24 during the winter months is limited. The capacity of

25 Edison's return ditch is 16 cfs, so we chose an upper limit.

0635

01 MR. DODGE: It was chosen as an upper limit with the

02 capacity of Edison's return ditch and not on the basis of

03 being best for waterfowl?

04 MR. PERRAULT: I mean, that was one of the issues. I

05 mean, the reality of it during that time of the year, there

06 is only an average of 11 cfs that goes through. So, if you

07 are going to apply for a winter right, it would make sense

08 to apply for that amount of water. And since the capacity

09 is 16 cfs, why don't you just go to the full capacity of the

10 ditch.

11 MR. DODGE: Let me ask you to take a look at Exhibit

12 65, Mr. Perrault. Could you show the Board where the return

13 ditch is? Show them where it starts and where it ends,

14 please.

15 MR. PERRAULT: Yes. The return ditch begins here at

16 the tailrace of the Lundy Power Plant and returns to Mill

17 Creek at this location, here.

18 MR. DODGE: It goes into Mill Creek then?

19 MR. PERRAULT: Yes, that is correct.

20 MR. DODGE: Describe it for the Board, if you could,

21 please.

22 MR. PERRAULT: Describe it? It's an open ditch with a

23 low gradient that meanders for approximately a mile and a

24 half.

25 MR. DODGE: Dirt?

0636

01 MR. PERRAULT: Portion of it is dirt; portion of it is

02 lined with concrete.

03 MR. DODGE: How did you come to think it had a capacity

04 of 16 cfs?

05 MR. PERRAULT: I was told by Edison personnel and DWP

06 personnel.

07 MR. DODGE: Have you seen testimony from Edison in this

08 proceeding that the capacity presently may be as low as 12

09 cfs?

10 MR. PERRAULT: I have seen capacity. I have seen

11 testimony of that, and I am also familiar with the type of

12 measuring devices. So, I am well aware that the accuracy of

13 those devices aren't very good.

14 MR. DODGE: Do you have an opinion as to whether the

15 return ditch, as it exists today, is usable in winter to

16 pass water?

17 MR. PERRAULT: Do I have an opinion? I believe that it

18 is, yes.

19 MR. DODGE: Have you heard anyone say, "Due to its low

20 gradient and icing, that there is a substantial probability

21 that it will not pass water in winter"?

22 MR. PERRAULT: No, I haven't.

23 MR. DODGE: When you had conversations with Bert

24 Almond, he didn't say anything like that?

25 MR. PERRAULT: No, he didn't.

0637

01 MR. DODGE: On Page 14 of your testimony, sir, let me

02 read this to you. You refer to a proposal the scientists

03 had to -- talking about 1.1 million pipeline that the

04 scientists rejected. Then you say:

05 Any improvement of the return ditch would

06 likely be as expensive, if not more so, then

07 the rejected pipeline proposal. (Reading.)

08 Did you do any calculations in that regard?

09 MR. PERRAULT: I did not, but I took that number from

10 comments that I believe you provided, Mr. Dodge, to some of

11 the work that we had done.

12 MR. DODGE: Had you seen the testimony of Larry

13 Harrison submitted in this matter, which gives substantially

14 lower cost for an updated and improved return ditch?

15 MR. PERRAULT: Yes, I have.

16 MR. DODGE: Do you have any quarrel with Mr. Harrison's

17 analysis?

18 MR. PERRAULT: I haven't reviewed it enough in detail,

19 enough detail, to have an opinion.

20 MR. KAVOUNAS: I have a quarrel with it. Mr. Harrison

21 did not look at corrugated metal, and he did not look at

22 simply lining the existing ditch. He looked at installing

23 concrete pipe and metal pipe.

24 MR. DOGE: Then you go on, Mr. Perrault:

25 In addition, the return ditch is an SCE

0638

01 facility, and SCE has expressed an

02 unwillingness to improve the ditch. Personal

03 communication where Bert Almond. (Reading.)

04 When you had this conversation with Mr. Almond, Mr.

05 Perrault, did he tell you that SCE did not object if someone

06 else wanted to spend the money to improve the ditch?

07 MR. PERRAULT: No, he did not.

08 MR. DODGE: Have you seen the SCE testimony on that

09 point, submitted on that matter?

10 MR. PERRAULT: No, I have not. It is my understanding

11 that you had called Edison as a witness, and that they did

12 not provide any testimony.

13 MR. DODGE: On Page 15, under the category Unresolved

14 Mill Creek Issues, you mentioned the Paoha Project.

15 Are you aware that that matter has now been resolved?

16 MR. PERRAULT: I am aware that it hasn't been

17 completely resolved. I am aware that the FERC has given an

18 order to take away the license of Mr. Keating.

19 MR. DODGE: Revoke the license?

20 MR. PERRAULT: Yes. But the State Water Board has not

21 acted on the permit.

22 MR. DODGE: Now, let's go back to Page 7 of your

23 testimony. You say at Page 7:

24 Although the scientists would prefer full

25 restoration of waterfowl habitat on Mill

0639

01 Creek, they concluded that full restoration

02 is probably infeasible because of the complex

03 issues regarding regulatory authorities,

04 competing beneficial uses of water, water

05 rights, water conveyance constraints, cost,

06 reasonableness, and environmental

07 consideration. (Reading.)

08 Citing Page 98. So, doggedly, I went to Page 98, and I

09 am reading what I think you are referring to:

10 Restoration of all potential waterfowl

11 habitat on Mill Creek does not appear

12 feasible under current conditions due to

13 complicated issues involving water rights and

14 the need for structural improvements to

15 convey increase flows. (Reading.)

16 At least as to the portion that I have read, sir, you

17 would agree that they do not mention cost, reasonableness,

18 or environmental consideration, correct?

19 MR. PERRAULT: That is true. And I probably erred in

20 not adding additional pages in other parts of their report

21 where they do refer to those issues.

22 MR. DODGE: Let's talk about the ones that are

23 mentioned. Water rights. Now, putting aside the Simis

24 water rights, you would agree that the water rights issue

25 can be revolved if we purchased the Conway -- if the Conway

0640

01 water rights are obtained and if the U.S. Forest Service

02 dedicates its rights?

03 MR. PERRAULT: No, I disagree with that.

04 MR. DODGE: Why is that, sir?

05 MR. PERRAULT: The reason for that is -- well, one of

06 the issues was the Forest Service right. The only reference

07 that the scientists made to the Conway water rights were for

08 winter flow. And it's DWP's interpretation of the decree

09 that their winter flow or their right to winter water is

10 limited to only those issues we talked about yesterday, that

11 irrigation water it is not a part of this.

12 MR. DODGE: Isn't it a fact, sir, that apart from the

13 Simis right that we could return all of the water that

14 starts in the Mill Creek watershed at the top of Mill Creek

15 by acquiring Conway rights, by the dedication of DWP's

16 rights, and by getting the Forest Service to agree?

17 MR. PERRAULT: That we could return all the water

18 rights or all of the water?

19 MR. DODGE: No, water.

20 MR. PERRAULT: No, I disagree with that.

21 MR. DODGE: Why is that, again.

22 MR. PERRAULT: The environmental issues that Mr.

23 Kavounas indicated on Wilson Creek, which I would tend to

24 believe is some water would have to remain there.

25 MR. DODGE: That may well be. Assume, just

0641

01 hypothetically, that the environmental assessment is made

02 Wilson Creek doesn't get any water. I am not saying I

03 advocate that, but assuming hypothetically that happened.

04 Physically all the water could be returned to Mill Creek

05 under the scenario I given you.

06 MR. PERRAULT: In an unreal world, probably, yes.

07 MR. DODGE: At one point in time 6391 was an unreal

08 world, too, so you can never tell what happens.

09 The second point the scientists make on Page 98 is

10 referred to, the need for structural improvements in order

11 to return the Mill Creek water, and would you agree with me

12 that the only structural improvement at issue is the upgrade

13 to 70 cfs of the return ditch?

14 MR. PERRAULT: I am sorry, didn't hear the question.

15 MR. DODGE: I am still on the scientists, Page 98, the

16 part I read to you. The second item after water rights,

17 they talked about structural improvements.

18 Do you take that to be a reference to the upgrade of

19 the return ditch to 70 cfs?

20 MR. PERRAULT: No. It is my interpretation that they

21 took most of this from Dr. Stine's appendix to the report.

22 He talks about several other structural improvements.

23 MR. DODGE: Would you agree, sir, that -- I am going to

24 change subjects now.

25 Would you agree that the scientists recommended high

0642

01 spring and summer flow releases that mimic the natural

02 hydrograph?

03 MR. PERRAULT: Yes, they did.

04 MR. DODGE: Would you agree that the scientists

05 recommended exploring upgrading the return ditch?

06 MR. PERRAULT: Yes, they did.

07 MR. DODGE: Would you agree that the scientists

08 recommended that three Mill Creek distributaries be reopened

09 and two be studied?

10 MR. PERRAULT: That was their recommendation; that is

11 correct, although they did, in my opinion, they deferred

12 from that later.

13 MR. DODGE: Would you agree that DWP's plan does none

14 of these things?

15 MR. PERRAULT: None of?

16 MR. DODGE: None of the three things I mentioned: high

17 spring and summer flow release that mimic the natural

18 hydrograph, exploring upgrading the return ditch, and

19 reopening of the distributaries?

20 MR. PERRAULT: No, I wouldn't agree with that at all.

21 MR. DODGE: Which of those three do you differ?

22 MR. PERRAULT: We do the first two.

23 MR. DODGE: High spring and summer flows that mimic the

24 natural hydrograph?

25 MR. PERRAULT: Yes.

0643

01 MR. DODGE: You are proposing to send those flows down

02 Mill Creek?

03 MR. PERRAULT: Well, I mean, they talk about mimicking

04 the natural hydrograph. There is a dam on the system and,

05 so -- I mean, they never qualified by what they mean by high

06 releases. I think that is a matter of interpretation. The

07 flows that we have sent down include higher flows during the

08 summertime, plus water that comes from the reservoir that is

09 released every year.

10 MR. DODGE: Would you agree that the highest flows come

11 out of the Southern California Edison Penstock during the

12 late spring and summer?

13 MR. PERRAULT: No.

14 MR. DODGE: When do the highest flows come out?

15 MR. PERRAULT: I am sorry, yes, the flows that go

16 through the Penstock, the highest ones that come out, come

17 out during on the months of June and July.

18 MR. Dodge: Are you proposing in your plan to send

19 those high flows down to Mill Creek?

20 MR. PERRAULT: I am proposing to send a portion of

21 those. But there are much higher flows that come directly

22 down Mill Creek that are released from the reservoir that

23 are far in excess of 70 cfs.

24 MR. DODGE: You said you were doing the first and

25 second. Are you saying your plan now involves exploring the

0644

01 upgrading of the return ditch?

02 MR. PERRAULT: It's already been explored.

03 MR. DODGE: What did that exploration consist of?

04 MR. PERRAULT: I think that we stated that in our

05 testimony, that Edison is opposed to doing it.

06 MR. DODGE: What you said in your testimony is that

07 Edison is opposed to paying for it. Is that the extent of

08 your exploration?

09 MR. PERRAULT: Well, it is an Edison facility.

10 MR. DODGE: I don't mean to be argumentative, sir, I

11 just want to know if that is the extent of your exploration.

12 MR. PERRAULT: Yeah. We have not pursued that any

13 further.

14 MR. DODGE: Now, Ms. Bellomo brought out testimony

15 yesterday that under the scientists' plan there would be

16 approximately 55 acres of waterfowl habitat created in Lower

17 Mill Creek.

18 Do you recall that testimony, sir?

19 MR. PERRAULT: I remember the number of 55 acres. I

20 don't remember that it was all waterfowl habitat.

21 MR. DODGE: Would you agree that the figure would be

22 substantially less than 55 acres under DWP's plan?

23 MR. PERRAULT: Common sense would say that that would

24 be so.

25 MR. DODGE: I just got a couple more things with you,

0645

01 and then we will be done.

02 Page 12 of your testimony, sir, you are talking about

03 the development of waterfowl habitat naturally. And you

04 have under C, Rewatering Mill Creek Distributaries.

05 Do you see that?

06 MR. PERRAULT: Yes, I do.

07 MR. DODGE: Going down to the second reason you say:

08 Second, the rewatering process by itself

09 may develop waterfowl habitats naturally.

10 These habitats are preferred because of

11 their sustainability and the biodiversity

12 associated with the natural recovery process.

13 The delta of Lee Vining Creek is a prime example

14 of this natural process. (Reading.)

15 Do you see that, sir?

16 MR. PERRAULT: Yes, I do.

17 MR. DODGE: So, you are using there, the Lee Vining

18 Creek experience as some guidance for Mill Creek, correct?

19 MR. PERRAULT: May I add that I defer to Brian

20 Tillemans on this section. That is Brian's analysis.

21 MR. DODGE: You know, excuse me, but it is in your

22 testimony.

23 MR. PERRAULT: Well, it is there with a personal

24 communication from Brian Tillemans, who is here on the

25 panel.

0646

01 MR. DODGE: Let me ask you, sir, are you aware that

02 since Judge Finney's order in 1989, that Lee Vining Creek

03 has been virtually a flow through situation?

04 MR. PERRAULT: Yes.

05 MR. DODGE: So, this natural waterfowl habitat, as you

06 characterize it, was created by a flow through situation; is

07 that right?

08 MR. PERRAULT: Once again, this is Brian's -- this was

09 communication with Brian. I think he would be the more

10 appropriate person to talk to that.

11 MR. DODGE: Mr. Tillemans, would you agree that the

12 experience on the Lee Vining Creek creating natural

13 waterfowl habitat from the flow through situation would

14 suggest the same remedy on Mill Creek?

15 MR. TILLEMANS: I would suggest what happened on the

16 Lee Vining Creek in terms of return flows and removal of

17 grazing would result in the same type of response you saw in

18 Lee Vining Creek.

19 MR. DODGE: Natural flows?

20 MR. TILLEMANS: It doesn't have to be natural flows.

21 It depends to what degree you want to restore it.

22 MR. DODGE: Mr. Perrault or Mr. Tillemans, either one

23 can answer the series of questions, then I am done.

24 Here is Lundy Lake, right, and water comes out of Lundy

25 Lake and it goes right down here, down Mill Creek, right

0647

01 down into Mono Lake.

02 Is that right?

03 Okay. Now, Mr. Perrault in his testimony at Page 5

04 tells us, if I can find it, talking about Southern

05 California Edison's operation of its reservoir, releases

06 must be made in most years to avoid spilling the reservoir.

07 Do you see that, both of you, gentlemen?

08 MR. PERRAULT: Yes, I do.

09 MR. DODGE: Am I right that the capacity of Lundy

10 Reservoir is such that in most years there has to be

11 spills?

12 MR. PERRAULT: No. It was Edison's practice, until the

13 late '80s, that they tried not to spill the reservoir, but

14 to make releases instead of spilling the reservoir.

15 MR. DODGE: In most years high releases, whether it is

16 spilling or through some other mechanism, high releases are

17 made?

18 MR. PERRAULT: Yes, because of the small capacity of

19 the reservoir.

20 MR. DODGE: At some point, these releases stopped,

21 correct, in most years?

22 MR. PERRAULT: Yes. That has been the case in the

23 past, although the Forest Service has asked for a year-round

24 release. That is still pending in the courts.

25 MR. DODGE: That has happened yet, right?

0648

01 MR. PERRAULT: It hasn't happened yet, no.

02 MR. DODGE: When water comes out of the Lundy Reservoir

03 during these high water times, am I right that water in Mill

04 Creek goes right down to Mono Lake?

05 MR. PERRAULT: Well, Mono Lake downstream from Mill

06 Creek, so, yeah, all the water that does make it, does go

07 into the lake, that isn't diverted.

08 MR. DODGE: In your experience -- Mr. Tillemans, you

09 may be a good person to answer this question.

10 In your experience are fish flushed down to the

11 bottomlands of Mill Creek, too, at that time?

12 MR. TILLEMANS: I don't know of fish being flushed down

13 there at that time, personally.

14 MR. DODGE: Mr. Perrault, do you know?

15 MR. PERRAULT: I have no knowledge of that, no.

16 MR. DODGE: If, hypothetically, fish were flushed down

17 to the bottomlands of Mill Creek and then SCE turned off the

18 water, what is going to happen to those fish?

19 MR. BIRMINGHAM: I am going to object on the grounds of

20 relevance. This relates to restoration of waterfowl

21 habitat. It doesn't relate to any fishery issue. I don't

22 understand the relevance.

23 CHAIRMAN CAFFREY: I am going to sustain that on the

24 basis I don't understand it either, and I don't think it is

25 relevant.

0649

01 MR. DODGE: Well, let me ask a question and then I'll

02 abide by the ruling.

03 Are you saying it is not relevant to this panel or not

04 relevant to the proceeding?

05 CHAIRMAN CAFFREY: I am not sure what portion of this

06 proceeding it would be relevant. Off the top of my head, I

07 don't think it is relevant to this panel.

08 MR. DODGE: I fully understand that. The reason I ask

09 it, I believe there are people in this room who are going to

10 be testifying about the relative benefits, fishery benefits,

11 of Mill Creek and Wilson Creek. If that is going to be

12 allowed, then I should be allowed to address these issues

13 also. Perhaps not with this panel.

14 CHAIRMAN CAFFREY: When we get to that, we will deal

15 with it then, Mr. Dodge.

16 MR. DODGE: Dr. White, how are you today?

17 DR. WHITE: Fine, thanks. How are you?

18 MR. DODGE: That is all I have.

19 DR. WHITE: I came a long way.

20 CHAIRMAN CAFFREY: You still got paid, right?

21 Thank you, Mr. Dodge.

22 Mr. Birmingham, you were --

23 MR. BIRMINGHAM: I was premature.

24 CHAIRMAN CAFFREY: Yes, we still do have

25 cross-examination from staff and then the Board Members, if

0650

01 there is any.

02 Mr. Frink. Ladies and gentlemen.

03 ---oOo---

04 CROSS-EXAMINATION

05 BY BOARD STAFF

06 MR. FRINK: Mr. Kavounas, I have a few questions. You

07 stated that the Department has done no analysis of the

08 biological effects of your waterfowl habitat restoration

09 plans; is that correct?

10 MR. KAVOUNAS: Yes, it is.

11 MR. FRINK: Rather, the Department tried to incorporate

12 the recommendations of the three scientists on the panel

13 that you retained. And to the extent that you believed it

14 was reasonable or feasible, you included those

15 recommendations in your plan?

16 MR. KAVOUNAS: Yes.

17 MR. FRINK: Could you explain, again, how the members

18 of that group were selected?

19 MR. KAVOUNAS: I really can't because I wasn't there.

20 MR. FRINK: Is there a member of the panel that could?

21 Mr. Tillemans.

22 MR. TILLEMANS: Originally, the Department was going to

23 go out and look for waterfowl consultants to take up this

24 task. And then it became apparent that the other parties

25 wanted to have a say in it, and it became a joint

0651

01 process. And the Department's consultant was Rod Drewien,

02 out of Idaho, that we would like to have seen on that Board

03 and was okayed. The Mono Lake Committee, Sally Miller

04 wanted Tom Radcliff. There was a Mono Lake Committee

05 representative on there, as well, and Dr. Reid and State

06 Lands, as well. And the rest of the parties wanted Dr. Reid

07 on there, as well. Basically, those were the three.

08 MR. FRINK: And were the governmental agencies or

09 organizations that you consulted with in arranging the panel

10 of experts, were they generally happy with the group that

11 was selected?

12 MR. TILLEMANS: Yes, the other parties were, yes.

13 MR. FRINK: I believe you described the selective

14 burning programs that the Department of Water and Power has

15 done in other lands that it owns outside of Mono Basin?

16 MR. TILLEMANS: Yes.

17 MR. FRINK: Have those burnings been conducted as part

18 of the Department's overall land management practices?

19 MR. TILLEMANS: Yes. We have several burning programs

20 going. We have several towns in the Owens Valley, and with

21 those burns it is basically a green belt-type burn where we

22 try to burn for fire safety around the towns.

23 We have range burns with our lessees, trying to improve

24 the pastures and improve the vigor of the vegetation on some

25 of the leases. We also have some wildlife programs where we

0652

01 burn wetland areas and try to improve waterfowl habitat, as

02 well.

03 MR. FRINK: Who does the Department consult with before

04 conducting those burns?

05 MR. TILLEMANS: The Department --

06 MR. FRINK: The Department of Water and Power.

07 MR. TILLEMANS: Basically, on our range land we work

08 with our lessees, and we have staff that has botanical or

09 wildlife expertise, and we go out and look at the site and

10 figure out where we can make any improvements.

11 MR. FRINK: Do you consult with the Department of

12 Forestry in any instances?

13 MR. TILLEMANS: Oh, yes. We bring -- the California

14 Department of Forestry is the implementation arm of all of

15 our burns. We work very closely with them.

16 MR. FRINK: Do you consult with the local pollution

17 control district in any instances?

18 MR. TILLEMANS: Yes. That is big part of it. We make

19 sure that the day smoke is blowing to town, we don't conduct

20 the burns. People don't like that.

21 MR. FRINK: So, approval of both, the Department of

22 Forestry and the local air pollution control district is

23 ordinarily required?

24 MR. TILLEMANS: Yes. In some of the burns in relation

25 to Buckley Ponds, we'll contact Fish and Game and get their

0653

01 opinions on if they have concerns. We take them out there

02 and work with them on that, as well. That is a cooperative

03 -- the Buckley Ponds Wildlife Project was signed in the

04 '70s. It was a cooperative project with the California

05 Department of Fish and Game, DWP, and California Department

06 of Forestry.

07 MR. FRINK: Is there an annual variation in the

08 property that you burn, in the amount of property and the

09 location of the property?

10 MR. TILLEMANS: Most definitely. During the extent of

11 the drought, we were a little bit concerned about burns

12 because of the chance of fire taking off because of the dry

13 conditions. And dependent on the need for the fires, you

14 know, if we've gone through a series of fires in the green

15 belt areas around town, we don't need to do it for a couple

16 of years. We don't have to burn those parcels.

17 In a lot of it, too, is if one of our livestock lessees

18 comes to us and that will vary year to year, too, depending

19 if they have needs to burn.

20 MR. FRINK: Mr. Kavounas, Appendage 1 to the Waterfowl

21 Habitat Restoration Plan is the plan that three independent

22 scientists prepared; is that correct?

23 MR. KAVOUNAS: I believe so, yes.

24 MR. FRINK: On Page 90 of that plan that you were

25 discussing earlier, get it in front of me, just a minute,

0654

01 under the heading of Cost, State's maintenance of Projects A

02 and B, are limited to the water delivery system. It says no

03 maintenance would be required for projects.

04 Could you explain that second statement? I was a

05 little unclear as to what that meant.

06 MR. KAVOUNAS: If you wouldn't mind giving me ten

07 seconds to review it, Mr. Frink.

08 MR. FRINK: Sure.

09 MR. KAVOUNAS: The best I can interpret the statement

10 that is made here is that the scientists believe that there

11 is no maintenance required, and so operating and maintenance

12 costs have not been -- maintenance costs have not been

13 included for A and B. They seem to imply that operating

14 costs would be included. Maintenance costs they say for A

15 and B are not included because they are not necessary.

16 That would lead me to the conclusion that A and B have

17 operating costs, C has operating had maintenance costs that

18 are not included.

19 MR. FRINK: To your knowledge, is there an estimate any

20 place of the operating costs of either Projects A or B?

21 MR. KAVOUNAS: No. Maybe by reference only. My

22 understanding is that the first phase of DeChambeau Ponds

23 Project is approximately $30,000 a year. I don't know how

24 applicable that would be to, say, element B.

25 MR. FRINK: Have there been maintenance costs

0655

01 associated with the first phase of the DeChambeau Project?

02 MR. KAVOUNAS: I am not certain on that. It seems to

03 me that Mr. Dodge was implying that they're redoing portions

04 of Phase I. In my mind, that wouldn't qualify as

05 maintenance. That would qualify as an upgrade.

06 MR. FRINK: Does any member of the panel have knowledge

07 of any expenses that have been incurred in either

08 maintaining or upgrading Phase I of the projects?

09 MR. TILLEMANS: It is my understanding that there is a

10 well that the Forest Service and the joint project put in

11 between Ducks Unlimited and the Forest Service that is run

12 on propane. I think the cost of that was $30,000 a year.

13 That is no longer being continued because of budgetary

14 constraints of the Forest Service.

15 MR. FRINK: The purpose of the well was to provide

16 water to the ponds; is that correct?

17 MR. TILLEMANS: Yes, it was.

18 MR. FRINK: How are they providing water now?

19 MR. TILLEMANS: It is my understanding it hasn't been

20 provided for the majority of the past year, at least.

21 MR. FRINK: Is there much water in the pond?

22 MR. TILLEMANS: There is natural spring flow right now,

23 but that was in the original pond; that was there to begin

24 with.

25 MR. FRINK: Phase I of the project, was that intended

0656

01 to expand the size of the ponds from what they had been?

02 MR. TILLEMANS: Yes.

03 MR. FRINK: In your opinion, has that expansion

04 resulted in an increase of waterfowl habitat?

05 MR. TILLEMANS: At this point, if I can recall, the

06 last time there wasn't any water in the expansion. So, I

07 don't think so.

08 MR. FRINK: Was there a lining process of the ponds

09 undertaken to reduce the leakage?

10 MR. TILLEMANS: To my recollection, at first they were

11 waiting to see if the cracks in the bottom of the ponds were

12 going to seal up naturally. And I think there may be an

13 ongoing effort or some discussion regarding bentonite

14 sealing the ponds.

15 MR. FRINK: How were the cracks in the bottoms of the

16 ponds created?

17 MR. TILLEMANS: Probably from natural swelling and

18 shrinkage of initial rewatering and drying.

19 MR. KAVOUNAS: My impression is that there is some

20 clay, some amount of clay, on the bottom of the ponds, and

21 the cracks would be natural vesication cracks of the parent

22 clay when it dries.

23 MR. FRINK: Had there been some leakage in the ponds

24 before the effort was made to expand the size of ponds?

25 MR. TILLEMANS: Yes, that is my understanding.

0657

01 MR. FRINK: Before they undertook the expansion

02 project, was the water that is available in the ponds

03 supplied from natural springs?

04 MR. TILLEMANS: No. I think -- again, this is not my

05 project, so I am just telling you what is out there. It is

06 my understanding they felt they needed additional water, and

07 that is why they put that well in there, to run the water

08 across the meadow and into the pond and be able to expand

09 that project to some ponds other than the existing one that

10 was there from the hot springs.

11 In answer to your increase in waterfowl habitat, Dr.

12 Jehl states that the use there has been basically the same

13 since he has been looking at the ponds.

14 MR. FRINK: Has the area of the ponds expanded as a

15 result of Phase I of the project?

16 MR. TILLEMANS: I think if the whole phase was

17 implemented, they would be. Due to the cost in maintenance

18 of maintaining that pump and some of the problems that have

19 occurred, I don't think the anticipated expansion has been

20 completed.

21 MR. FRINK: When was the project undertaken, the

22 expansion project begun?

23 MR. TILLEMANS. I went to the dedication. Bruce was

24 there. Four kids, my memory is waning. Couple years ago.

25 MR. DODGE: It was in April, I think.

0658

01 CHAIRMAN CAFFREY: Which year?

02 MR. DODGE: I will work on that.

03 MR. KAVOUNAS: The project was completed in September

04 1995.

05 BOARD MEMBER DEL PIERO: I thought for a moment I was

06 going to have to swear in Mr. Dodge.

07 MR. FRINK: Mr. Tillemans, are you familiar with

08 waterfowl habitat in the area of Wilson Creek?

09 MR. TILLEMANS: Yes.

10 MR. FRINK: Is it your understanding that, if all the

11 water were removed from Wilson Creek, there would be a

12 decline in waterfowl habitat in that area?

13 MR. TILLEMANS: I would be very concerned about impacts

14 because I have seen it, and it is some of the best waterfowl

15 habitat in the north shore right now. And I would have

16 strong concerns that any dewatering and what impacts may

17 occur there. I am not a geohydrologist specialist, so I

18 can't give you an exact answer, but I would be very

19 concerned.

20 MR. FRINK: To your knowledge, has anybody done an

21 environmental study to compare the potential gains in

22 waterfowl habitat through restoring flow to Mill Creek with

23 the potential loss of waterfowl habitat in the area of

24 Wilson Creek?

25 MR. TILLEMANS: I don't think a detailed assessment.

0659

01 MR. FRINK: That is all I have.

02 Thank you.

03 MR. CANADAY: Mr. Perrault, you testified that on the

04 northernmost property that as shown on the exhibit, I am not

05 sure which number that is, but it is a Mill Creek/Wilson

06 Creek vicinity map.

07 MR. BIRMINGHAM: Exhibit 65.

08 MR. CANADAY: The northernmost property, you testified

09 that that is still irrigated from water that comes out of

10 the Lundy Project; is that correct?

11 MR. PERRAULT: What property are you referring to?

12 MR. CANADAY: The LADWP property, the most northern

13 property on the map.

14 MR. PERRAULT: Yes. It is my understanding that the

15 property is currently leased. I know it i leased to Mr.

16 Arnold Beckman, I don't know, and I believe it is still

17 irrigated, yes.

18 MR. CANADAY: Is that one of the pieces of property

19 under which you're proposing to potentially dedicate this

20 irrigation water, to the return of Mill Creek?

21 MR. PERRAULT: Well, yes. It's a minor amount of

22 water, only one cfs.

23 MR. CANADAY: You testified yesterday about the 1914

24 Mill Creek decision or decree; is that correct?

25 MR. PERRAULT: Yes.

0660

01 MR. CANADAY: You mentioned -- and your testimony

02 described the water rights and how they are dedicated to the

03 various parties; is that correct?

04 MR. PERRAULT: Yes.

05 MR. CANADAY: Are you aware that the decree, as it

06 identifies the rights of the various parties, refers to the

07 natural flow of Mill Creek? Are you aware of that?

08 MR. PERRAULT: I am aware that it makes references to

09 the natural flows, yes.

10 MR. CANADAY: If it makes reference, in your mind, that

11 means that whatever water right is alloted to any party is

12 based on the natural flow of that hydrologic year to that

13 party; is that correct?

14 MR. PERRAULT: Well, I am not an expert on water

15 rights. I don't claim to be one, and so --

16 MR. CANADAY: You won't disagree that the Mill Creek

17 decision as it referred to the water rights refers to the

18 natural flow of Mill Creek as opposed to the impaired flow

19 of Mill Creek?

20 MR. PERRAULT: Once again, that is the reference it

21 makes, and I am still unclear in my mind as to how that

22 plays out.

23 MR. CANADAY: Okay.

24 Referring back to Exhibit 65, I believe, the Mill Creek

25 and Wilson Creek vicinity map. On that map it shows Mill

0661

01 Creek or some sort of conveyance that we call Mill Creek

02 that begins at the tailrace of the Lundy Power Plant.

03 Is that, in fact, the actual watershed of Wilson Creek?

04 Would that be the start of the watershed of Wilson Creek,

05 the

06 natural watershed?

07 MR. PERRAULT: The natural watershed of Wilson Creek?

08 No. I believe it is lower than that.

09 MR. CANADAY: Do you know approximately on that map to

10 be able to describe to the Board where the watershed of

11 Wilson Creek is relative to the Lundy outfall?

12 MR. PERRAULT: Yeah. Let me point to where it would

13 be.

14 MR. CANADAY: Thank you.

15 MR. PERRAULT: I believe it would be up in this area

16 here.

17 MR. CANADAY: You are identifying the northern portions

18 of the Conway Ranch; is that correct?

19 MR. PERRAULT: Yes.

20 MR. CANADAY: So, by identifying that, your testimony

21 is that the Wilson Creek watershed does not start, in fact,

22 at the tailrace of the SCE power plant?

23 MR. PERRAULT: Well, no, I am not. I mean, the

24 confusion enters in on my mind that Mr. Keating had a right

25 on Wilson Creek, and in his diversion was just below the

0662

01 Lundy tailrace. So, I guess that is a point of confusion

02 for me.

03 MR. CANADAY: Is there any carryover storage in Lundy

04 Lake, to your acknowledge, on an annual basis?

05 MR. PERRAULT: Well, it is my understanding that we

06 have an agreement with Edison that they can't carry over

07 more than 11 percent of the storage. If you look at the

08 long-term storage chart or average storage, there isn't much

09 carryover.

10 MR. CANADAY: Much meaning several hundred acre-feet?

11 MR. PERRAULT: Yes.

12 MR. CANADAY: Are there any recreational values of

13 Lundy Lake, to your knowledge?

14 MR. PERRAULT: Yes, there are.

15 MR. CANADAY: Mr. Tillemans, could you tell me what

16 some of the recreation uses of Lundy Lake are?

17 MR. TILLEMANS: Yes. I camp up there a couple times

18 every year with my family. There is extensive fishing use

19 and camping. In the fall, it is in the brochures as being

20 one of the areas to go look at fall colors up by Lundy

21 Canyon and Reservoir, above it and what-have-you. It's

22 highly useful from a recreational standpoint.

23 MR. CANADAY: Are there developed recreational sites at

24 Lundy Lake or facilities?

25 MR. TILLEMANS: Yes, there are.

0663

01 MR. CANADAY: What are there?

02 MR. TILLEMANS: Campgrounds, and there are boat

03 marinas, and there are houses behind Lundy Lake, as well,

04 private houses. But, basically, the locals go up there and

05 fish Lundy Lake and because of the scenery and the

06 fishing.

07 MR. CANADAY: Thank you.

08 In the LADWP plan for waterfowl, it refers to

09 rewatering channels in Rush Creek, two channels in addition

10 to what the fishery scientists have recommended in the

11 fisheries plan.

12 Is that correct? I will take an answer from any one.

13 MR. TILLEMANS: Are you referring to the stream?

14 MR. CANADAY: The stream channels, yes.

15 MR. TILLEMANS: Right.

16 MR. CANADAY: The source of that water for the

17 rewatering is to be -- what is the water source for the

18 rewatering of those channels?

19 MR. TILLEMANS: In the Rush Creek bottomland?

20 MR. CANADAY: Yes.

21 MR. TILLEMANS: Rush Creek water.

22 MR. CANADAY: That water is to come from the existing

23 flow rates?

24 MR. TILLEMANS: Yes.

25 MR. CANADAY: Is there a possibility that this

0664

01 additional water necessary for these channels could reduce

02 the flows for fisheries' restoration?

03 MR. TILLEMANS: That is one of the concerns that didn't

04 come out in the beginning. You always have some

05 trade-offs. If you take permanent water away from one place

06 and place it in another in that system, you are going to

07 have trade-offs.

08 That was not brought out. If your intent is to

09 rewater, to jump start vegetation, which I think the stream

10 scientists, Trush, Ridenhour, and Hunter, originally

11 intended and have stated so, by irrigating you can prefer

12 vegetation over, say, fisheries habitat. That is a

13 trade-off.

14 MR. CANADAY: The LADWP plan proposes to monitor

15 waterfowl populations for use on the lake and near shore

16 wetlands; is that correct, Mr. Tillemans?

17 MR. TILLEMANS: Yes.

18 MR. CANADAY: I believe that what is stated in the

19 plan is that monitoring will continue until they complete --

20 a wet and dry cycle is achieved after the target level is

21 achieved, the lake level is reached.

22 Is there any more meaningful time frame which is

23 anticipated? That doesn't provide the Board with any

24 understanding of time frame.

25 MR. KAVOUNAS: No. This is the same dilemma that we

0665

01 have with adaptive management for the stream flows. The

02 idea is that you want to get a complete sample

03 representative years. The idea that has been going around,

04 around in my mind is we can set, let's say, a goal of -- we

05 get one year of each type representative, one representative

06 year of each type, or a maximum of a certain number of

07 years, regardless of whether we have achieved representation

08 or not.

09 As a maximum number of years, I would offer, maybe, ten

10 to 12 years.

11 MR. CANADAY: Beyond the reach --

12 MR. KAVOUNAS: Beyond the level of the lake, but that

13 is just my opinion.

14 MR. CANADAY: I am trying to understand what your

15 understanding might be for that time frame. Also in your

16 testimony, Mr. Kavounas, I believe it is your testimony,

17 LADWP proposes to fund a portion of the GIS studies, the

18 Salt Cedar removal, brine fly monitoring, potentially, and

19 it refers to duration.

20 I am not sure what duration means. I believe that is

21 on Page 2 of your testimony.

22 MR. KAVOUNAS: Third paragraph from the top?

23 MR. CANADAY: Yes, third paragraph.

24 MR. KAVOUNAS: What I am trying to make clear for State

25 Board and staff in my testimony there is, I am clearly

0666

01 identifying the element that the Department did not

02 incorporate, the element of the scientists' plan that the

03 document did not incorporate.

04 So, you know, our plan does not propose Salt Cedar

05 control. The scientists recommended Salt Cedar Interagency

06 Task. And I believe it should be that, and I believe the

07 Mono County Collaborative Task Force will address and the

08 Department is part of that, and as such, will participate in

09 it. And the same goes for GIS.

10 Further, in my testimony I say we do not propose brine

11 fly monitoring for reasons that Dr. White has explained.

12 And in describing which elements of the scientists plan we

13 do not incorporate, I also say that we have some differences

14 in duration of monitoring. I guess, I believe we had some

15 differences.

16 MR. CANADAY: What is the Mono County Task Force?

17 MR. KAVOUNAS: That is fairly recently formed, I think

18 within the last year and a half, a task force of all the

19 agencies. I think that was organized under the direction of

20 the County, and it is intended to pull together all the

21 agencies that have land management responsibilities in the

22 County and address common issues. I don't know more details

23 than that.

24 I know we have an engineer from our Bishop office, Mr.

25 Lloyd Anderson, who regularly attends the meetings. I have

0667

01 been in communication with him and have asked him if they

02 have goals, such as Salt Cedar, GIS, the shrimp, and they

03 have.

04 You know, the solution that they seek is a solution

05 because there are some many agencies and there are different

06 ownerships of land and different jurisdictions, you need a

07 solution that everyone agrees to. The solution would have

08 to be participative by all the agencies. That is my

09 understanding of what the task force is.

10 MR. CANADAY: Is it your understanding that some sort

11 of vegetative GIS will be developed for the Mono Basin?

12 MR. KAVOUNAS: My understanding is that the task force

13 will result in a basin wide GIS; that GIS -- all different

14 layers of data could be added to it. Vegetation would be

15 one of them. You know, all kinds of information that would

16 be pertinent to land management.

17 MR. CANADAY: Would it be your testimony that the

18 Department would be willing to, in those layers of data,

19 provide those data tht are, one, on your land or on areas

20 which you are undertaking restoration activities?

21 MR. KAVOUNAS: Yes. The Department will be a full

22 partner with all the other land management.

23 MR. CANADAY: Mr. Perrault, has anyone investigated

24 alternative irrigation techniques for LADWP properties?

25 MR. PERRAULT: No, we have not.

0668

01 MR. CANADAY: The current method is flood irrigation;

02 is that correct, through ditches?

03 MR. PERRAULT: Yes.

04 MR. CANADAY: Dr. White, let you earn your money.

05 You refer to the ongoing lake limnology and chemistry

06 modeling that is going, I believe, through Dr. Melack at

07 U.C. Santa Barbara; is that correct?

08 DR. WHITE: Yes, I did.

09 MR. CANADAY: Are the reports, are they in the form of

10 annual reports to the Department?

11 DR. WHITE: Yes. We do get an annual report, and most

12 of that data ends up being published in peer review

13 literature.

14 MR. CANADAY: Are those reports proprietary or are they

15 public information that could be distributed to the State

16 Board?

17 DR. WHITE: The State Board can have them. We provided

18 a lot of that information through the EIR.

19 MR. CANADAY: The access to those annual reports, if

20 the Board requested those, is part of an annual monitoring

21 and reporting requirement. Those would be made to the Board

22 on an annual basis?

23 MR. KAVOUNAS: Yes.

24 DR. WHITE: With the understanding that you won't try

25 to scoop Dr. Melack.

0669

01 MR. JOHNS: Don't worry about it.

02 MR. CANADAY: Mr. Kavounas, it's your understanding,

03 and any other member of the panel, it is your understanding

04 that because of the applications filed before this agency

05 for water rights or any future 1707 process before this

06 Board, that the likelihood is the City of Los Angeles would,

07 in fact, become the lead agency for any State environmental

08 documentation? Is that your understanding?

09 MR. BIRMINGHAM: It is a requirement of D-1631. That

10 is our understanding.

11 MR. CANADAY: Thank you. That is all I have.

12 CHAIRMAN CAFFREY: Is that the end of the questions?

13 Thank you very much, ladies and gentlemen.

14 Any questions from the Board Members for

15 cross-examination?

16 Mr. Del Piero, one finger; does that mean one question?

17 ---oOo---

18 CROSS EXAMINATION

19 BY MEMBERS OF THE BOARD

20 BOARD MEMBER DEL PIERO: One question, literally just

21 one, yes. No multiple part.

22 Earlier, a question was asked whether or not any

23 specific analysis had been done in terms of analyzing the

24 waterfowl habitat that currently exists in Wilson Creek and

25 what the impact of that would be on rediversion of water

0670

01 back into Mill Creek. I think the answer was, there has

02 been no detailed analysis done.

03 Are any of you aware of any analysis that has been done

04 in regards to preliminary evaluations as to the impacts of

05 those issues?

06 MR. KAVOUNAS: To my knowledge, I know of two opinions

07 that have been rendered on the value of Wilson habitat. The

08 one -- the first one is from Dr. Jehl, who has been our

09 consultant and has collected our monitoring data throughout

10 this period and, if I may include, this last year as well.

11 In his opinion, the -- it's my impression that his

12 opinion is that the habitat at the mouth of Wilson Creek is

13 one of the best habitats for waterfowl in the basin.

14 The second opinion that I am aware of is the one by the

15 three scientists on Page 99 of the report, which says,

16 regarding Wilson Creek, this channel has currently limited

17 value to waterfowl and low potential for restoration. So I

18 see two conflicting opinions. And the only thing I note is

19 the three scientists did not consult with Dr. Jehl. So,

20 there was no attempt to resolve any scientific opinion

21 differences.

22 MR. TILLEMANS: I might add, too, Mr. Del Piero, I know

23 BLM did a resource assessment.

24 BOARD MEMBER DEL PIERO: BLM?

25 MR. TILLEMANS: BLM. And I think Terry Russi will

0671

01 address that in his testimony.

02 BOARD MEMBER DEL PIERO: Where?

03 MR. TILLEMANS: They have land on Wilson Creek. They

04 went through and assessed the resources that they had on

05 their land.

06 BOARD MEMBER DEL PIERO: That is the resources

07 assessment for Wilson Creek. Did they do a comparative

08 analysis in terms of what would happen in the event water

09 would be transferred out of there?

10 MR. TILLEMANS: I think you have to refer to BLM.

11 BOARD MEMBER DEL PIERO: That is coming up soon?

12 MR. JOHNS: Yes.

13 BOARD MEMBER DEL PIERO: Thank you very much,

14 gentlemen.

15 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

16 Anything else from the Board Members?

17 Time for redirect?

18 MR. BIRMINGHAM: Would this be an appropriate time for

19 morning break?

20 CHAIRMAN CAFFREY: Excuse me. Thank you.

21 I saw you looking at the clock, and it is an opportune

22 time for about a ten minute break.

23 Let's do that. Thank you.

24 (Break taken.)

25 CHAIRMAN CAFFREY: We will resume the hearing and, Mr.

0672

01 Birmingham, it is time for redirect of the panel. Do you

02 have an estimate of how much time you are going to need, sir?

03 MR. BIRMINGHAM: Probably about half an hour.

04 CHAIRMAN CAFFREY: Thank you, sir.

05 We will set the clock at half an hour.

06 ---oOo---

07 REDIRECT EXAMINATION

08 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

09 BY MR. BIRMINGHAM

10 MR. BIRMINGHAM: Mr. Tillemans, I would like to follow

11 up, if I may, on a process that was followed in the

12 preparation of the Waterfowl Habitat Restoration Plan

13 submitted to the Board by the Department of Water and

14 Power.

15 The three consultants were retained by the Department;

16 is that correct?

17 MR. TILLEMANS: That is correct.

18 MR. BIRMINGHAM: What was the procedure used in

19 selecting those consultants?

20 MR. TILLEMANS: The procedure was the parties submitted

21 recommendations of who they would like to be interviewed for

22 that. And the Department at first was going out and looking

23 on its own for some expertise in waterfowl, and it was

24 desired to get input from the other parties who they might

25 want to recommend. And thereafter it was, basically, we

0673

01 were at a meeting in Sacramento and we kind of hashed out

02 who would be on the team, based on the input of the

03 parties.

04 MR. BIRMINGHAM: When you say "we hashed out," who is

05 we?

06 MR. TILLEMANS: It was the TAG group in regards to

07 waterfowl.

08 MR. BIRMINGHAM: The participants in that TAG group

09 meeting were representatives of the parties designated by

10 Decision 1631?

11 MR. TILLEMANS: That's correct.

12 MR. BIRMINGHAM: Those were the parties that 1631 said

13 that the Department was supposed to consult with in

14 connection with the submission of the waterfowl habitat

15 restoration?

16 MR. TILLEMANS: That's correct.

17 MR. BIRMINGHAM: Mr. Kavounas, in preparing the plan

18 that was submitted by the Department of Water and Power to

19 the State Water Resources Control Board, what process did

20 the Department follow in deciding what recommendations of

21 the three consultants would be included in that plan?

22 MR. KAVOUNAS: We followed the guidelines given to us

23 with Decision 1631 and tried to apply what we consider is

24 reasonable and feasible as a standard, and we held the

25 projects up to that. And to get some scientific relevance,

0674

01 we consulted with Dr. Joe Jehl, as has been fairly apparent

02 in my testimony and cross-examination today.

03 MR. BIRMINGHAM: In trying to decide what is reasonable

04 and feasible, did the Department consider those aspects of

05 the plan over which it had control?

06 MR. KAVOUNAS: Yes.

07 MR. BIRMINGHAM: Could you explain further how that

08 criterion affected your decision about what to include in

09 the plan?

10 MR. KAVOUNAS: I can give you some examples. For

11 example, in the burn program, the Department's plan proposes

12 to conduct the burns as promoted by the scientists on our

13 land. When it comes to other agencies' land, I believe the

14 plan recommends that we will encourage them and provide them

15 with any assistance that we can. Since it is their land,

16 that they would be responsible because we believe that burns

17 are part of responsible land management, anyway.

18 To give you another example, Mill Creek, the scientists

19 called for the Department to dedicate its irrigation right

20 in Thompson, and they called that a major and significant

21 first step toward achieving this as a restoration goal. We

22 believe that is well within our control, so we went ahead

23 and recommended that in our plan.

24 MR. BIRMINGHAM: As an example, the entire rewatering

25 of Mill Creek was something that you have viewed beyond your

0675

01 control?

02 MR. KAVOUNAS: Yes.

03 MR. BIRMINGHAM: It has been suggested that the

04 Department could buy Conway Ranch. Has the Department

05 considered buying Conway Ranch?

06 MR. KAVOUNAS: Not in preparation of the waterfowl

07 habitat plan, not at all.

08 MR. BIRMINGHAM: Another example I think that came out

09 during your cross-examination, was scrapes. You concluded

10 that you wouldn't include scrapes because the lands on which

11 those scrapes would occur were lands within the control or

12 under the jurisdiction of the State Lands Commission and

13 they objected to that. The State Lands Commission objected

14 to that restoration proposal.

15 Is that correct?

16 MR. KAVOUNAS: That's correct.

17 MR. BIRMINGHAM: In response to Mr. Dodge's question

18 this morning, you indicated that if the proposed scrapes

19 occur on DWP's land, then the Department would carry out

20 that proposal?

21 MR. KAVOUNAS: Yes. I would like to point out that

22 that, along with everything else, is a result of cooperative

23 effort, at least we think it is cooperative. So, if the

24 State Lands Commission stood firm and said we want to see no

25 scrapes, then, you know, that is something that we would

0676

01 leave up to somebody else to decide, maybe a consensus among

02 the parties. But if the State Lands Commission said, "We do

03 not oppose scrapes anywhere in the basin, outside of State

04 Lands Commission land," then we would carry that out.

05 MR. BIRMINGHAM: That raises another subject. A couple

06 of times during your cross-examination, you referred to

07 cooperative efforts with other agencies and indicated that

08 the Department would carry out some of the proposals if

09 there were cooperative funding.

10 Can you most explain why, from the Department's

11 perspective, cooperative funding is an appropriate

12 condition?

13 MR. KAVOUNAS: Once again, we are not the only

14 landowner in the basin. Our lands are not the only ones

15 that would benefit. Other agencies' land would also

16 benefit. In some instances -- you know my views as to the

17 marginal benefit of the waterfowl habitat that we would

18 create. If we look at a project such as DeChambeau, and the

19 cost estimate in here, I believe, is close to three-quarter

20 million dollars without any operating costs. To me that

21 doesn't seem economically feasible. I couldn't recommend

22 that to my management.

23 So, to that effect, as a matter of fact, I would like

24 to point out that we have attempted to get cooperative

25 funding, specifically for DeChambeau.

0677

01 Am I getting ahead of you?

02 MR. BIRMINGHAM: I was going to get to that in a

03 moment.

04 If I understand your response to my question, it is the

05 Department's position that other agencies with land

06 management responsibilities in the basin should bear some of

07 the responsibility for carrying out projects which will

08 benefit or further their land management purposes. Is that

09 correct?

10 MR. KAVOUNAS: Yeah. I think, you know, the

11 Department's responsibility to mitigate does not absolve

12 other agencies' responsibilities to manage.

13 MR. BIRMINGHAM: A moment ago you mentioned you had

14 sought outside funding. Who was responsible for seeking

15 that outside funding to carry on the DeChambeau/County Ponds

16 project?

17 MR. KAVOUNAS: Mr. Brian Tillemans who is sitting on

18 this panel.

19 MR. BIRMINGHAM: Mr. Tillemans, can you describe for us

20 what you did to seek outside funding to carry out that

21 proposal?

22 MR. TILLEMANS: Basically, we haven't really submitted

23 form applications, but we have discussed it, what is called

24 the Intermountain West Joint Venture Program, and there is a

25 local Eastern Sierra chapter. And they have identified the

0678

01 Mono Basin as a high priority area, and they seek funding

02 through NAWCA, which is the North American Wetland

03 Conservation Act.

04 MR. BIRMINGHAM: Essentially, the Department has

05 discussed with the Intermountain -- what is the name of the

06 agency?

07 MR. TILLEMANS: Intermountain West Joint Venture.

08 MR. BIRMINGHAM: You have approached the Intermountain

09 West Joint Venture about obtaining funds, federal funds, to

10 help implement some of the programs that are proposed by the

11 consultant; is that correct?

12 MR. TILLEMANS: Yes. We have expressed within that

13 group, our desire to seek these funds.

14 MR. BIRMINGHAM: Have any of the other parties here in

15 this proceeding participated in those discussions?

16 MR. TILLEMANS: Yes, they have.

17 MR. BIRMINGHAM: Which parties are those?

18 MR. TILLEMANS: The Mono Lake Committee, Fish and Game,

19 and I think a Forest Service representative has been there.

20 MR. BIRMINGHAM: Did the Mono Lake Committee express

21 any view on the propriety of the DWP obtaining funds under

22 the North American Wetland Conservation Act?

23 MR. TILLEMANS: They have.

24 MR. BIRMINGHAM What was their view?

25 MR. TILLEMANS: It was at a meeting at a meeting that a

0679

01 cohort of mine went to, and Mono Lake's attendee was Greg

02 Reise. And he expressed the inappropriateness of DWP to

03 seek those kind of funds.

04 MR. BIRMINGHAM: He expressed opposition to DWP

05 obtaining those funds?

06 MR. TILLEMANS: Yes.

07 MR. BIRMINGHAM: Did the Department of Fish and Game

08 take a position?

09 MR. TILLEMANS: I don't know if they really took a

10 position. They may have questioned, again, the

11 appropriateness of seeking the funds.

12 MR. BIRMINGHAM: You are not sure about Fish and Game?

13 MR. TILLEMANS: Right.

14 MR. BIRMINGHAM: Do you know if the Forest Service took

15 a position on whether or not it would be appropriate for

16 DWP to obtain those funds?

17 MR. TILLEMANS: I know of no position.

18 MR. BIRMINGHAM: Mr. Perrault, there were a number of

19 questions asked of you by Mr. Dodge this morning concerning

20 the facilities that would be required to return water to

21 Mill Creek from Wilson Creek. He asked you about the

22 ability of the Southern California Edison Return Ditch to

23 convey water in the winter.

24 Have you visited the return ditch during a winter

25 period?

0680

01 MR. PERRAULT: No, I have not.

02 MR. BIRMINGHAM: Were you in the Mono Basin in early

03 January of this year?

04 MR. PERRAULT: Excuse me, yes, I was.

05 MR. BIRMINGHAM: Can we declare him a hostile witness?

06 CHAIRMAN CAFFREY: I was going to ask you.

07 MR. DODGE: We will stipulate that everything conveyed

08 water, January of this year.

09 BOARD MEMBER DEL PIERO: Including major state

10 highways.

11 MR. PERRAULT: I guess I was thinking you were

12 referring to an earlier reference.

13 MR. BIRMINGHAM: Have you seen the Southern California

14 Edison Return Ditch convey water in the winter?

15 MR. PERRAULT: Yes, I have.

16 MR. BIRMINGHAM: Another question that was asked of you

17 yesterday --

18 BOARD MEMBER DEL PIERO: Can we give him credit for

19 that, Mr. Birmingham?

20 MR. BIRMINGHAM: You were asked a question yesterday, a

21 question by, I believe, Ms. Scoonover about DWP's ownership

22 of land within the Mill Creek floodplain. Your response to

23 that question took me by surprise. I am not sure you

24 understood the question.

25 In fact, does DWP own all of the land within the Mill

0681

01 Creek floodplain?

02 MR. PERRAULT: No, they don't. It was late in the day

03 yesterday when she asked me that question. I was somewhat

04 tired.

05 MR. BIRMINGHAM: If DWP does not own all of the land

06 within the Mill Creek floodplain, then, ergo, there must be

07 other land owners; is that right?

08 MR. PERRAULT: Yes.

09 MR. BIRMINGHAM: He's all yours Ms. Scoonover on that

10 issue.

11 A couple of times during your responses to questions,

12 Mr. Kavounas, you left me with the impression that, in your

13 view, the Department of Water and Power is not responsible

14 for the degradation of Mill Creek. Is that your view?

15 MR. KAVOUNAS: Yes, it is.

16 MR. BIRMINGHAM: I would like to read to you from the

17 testimony of Dr. Scott Stine, which has been marked for

18 identification as R-SLC/DPR-400. On Page 2 he has a section

19 in his testimony called Historical Overview of Lower Mill

20 Creek. And it states:

21 Until the mid 19th century, Mill Creek was

22 the third largest stream in the Mono Basin.

23 After crossing the bedrock of the Sierra, it

24 flowed through a steep narrow canyon reach,

25 then through a deltaic bottomland before

0682

01 reaching Mono Lake. (Reading.)

02 And further on he says:

03 By the 1800s, water was being diverted from

04 Mill Creek to support pasture, both to the

05 north and the south of the stream.

06 Construction of Lundy Dam around the turn of

07 the century permitted an even larger

08 diversion to the northward for hydroelectric

09 generation at Lundy Power House. (Reading.)

10 And then under a section entitled Destruction of the

11 Mill Creek Bottomland he states:

12 Throughout these early years of the diversion

13 and continuing through the present day, Mill

14 Creek continued to flow at greatly diminished

15 levels through its canyon reach, supplying

16 water to the stream side vegetation. That

17 vegetation, dense and apparently vigorous,

18 persists today. But the diminished flows

19 seldom reached the bottomland which received

20 water only during occasional spills of Lundy

21 Reservoir. By early in the century, most of

22 the riparian vegetation on the bottomland had

23 desiccated and died. With the channel no

24 longer protected by vegetation, spills from

25 the reservoir scoured bottomland, creating a

0683

01 single, wide wash. Flow that reaches the

02 Mill Creek bottomland today follows the

03 single wash, the multiple channels that once

04 distributed flow across the bottomland remain

05 in place and intact, but they are plugged at

06 the heads by the sediment generated by the

07 cutting of the wash. (Reading.)

08 And then further he says:

09 Scattered over the bottomland are downed

10 trunks of the cottonwoods that were killed by

11 the dewatering that began in the 1870s.

12 (Reading.)

13 The Department of Water and Power, was it in the Mono

14 Basin in the 1870s?

15 MR. KAVOUNAS: Not to my knowledge.

16 MR. BIRMINGHAM: So, is it your understanding that the

17 desiccation of Mill Creek watershed occurred prior to the

18 Department's diversions of water out of the Mono Basin for

19 export?

20 MR. KAVOUNAS: Yes.

21 MR. BIRMINGHAM: The Department of Water and Power's

22 knowledge is that in the Rush Creek and Lee Vining

23 watersheds it has had a negative impact on the environment

24 there. The Department recognizes that, doesn't it?

25 MR. KAVOUNAS: Yes. Above and beyond that, irrigation

0684

01 and grazing, prior to the Department's presence.

02 MR. BIRMINGHAM: In this particular case, with respect

03 to Mill Creek and the destruction described by Dr. Stine's

04 testimony, is it the Department's position that it is not

05 responsible for that destruction?

06 MR. KAVOUNAS: That's correct.

07 MR. BIRMINGHAM: Who would be responsible for that

08 destruction?

09 MR. KAVOUNAS: I am not -- I don't know who. I know

10 who it isn't. You know, the Department has simply continued

11 historical practice of irrigation on the land it owned, the

12 Thompson Ranch.

13 MR. BIRMINGHAM: Dr. White, yesterday Ms. Scoonover

14 asked you about whether the Department of Water and Power,

15 as part of its Waterfowl Habitat Restoration Program

16 monitoring, considered monitoring Ctenocladus?

17 Do you recall that question?

18 BOARD MEMBER DEL PIERO: Ctenocladus.

19 MR. BIRMINGHAM: Excuse me, Ctenocladus. I can't read

20 my own writing, even with my glasses.

21 DR. WHITE: Ctenocladus.

22 MR. BIRMINGHAM: What is Ctenocladus?

23 DR. WHITE: Ctenocladus is a filamentous, algal species

24 that grows on the bottoms of streams, stringy, threaded

25 algas forms of matter.

0685

01 MR. BIRMINGHAM: Grows on the bottom of Mono Lake?

02 DR. WHITE: Yes, near shore, shallow water.

03 MR. BIRMINGHAM: Do you think it would be appropriate

04 to, as part of the habitat restoration monitoring program,

05 monitor Ctenocladus?

06 DR. WHITE: I think it would have limited value for two

07 reasons. I know of -- I have seen no data that birds feed

08 upon it. In a controlled laboratory expert that was done at

09 U.C. Irvine by Tim Bradley, who is on the faculty there, and

10 David Herbst, who has done some work for the EIR, shows that

11 Ctenocladus was an inferior food for flies. They do much

12 better on the diatoms that grow on the bottom of Mono Lake,

13 another Chrysophyta. So, the birds don't eat it and the

14 flies don't do well on it, but I think it would be of

15 particular value for the purpose of our monitoring plan.

16 MR. BIRMINGHAM: Can you explain for me the basis of

17 your opinion that for purposes of this monitoring plan, the

18 Waterfowl Habitat Restoration Monitoring Plan, that

19 monitoring alkali flies is not appropriate?

20 DR. WHITE: Sure. I believe that the recommendation

21 that the experts made regarding the value of monitoring

22 alkali flies as bird food was based on unfamiliarity with

23 the background data. They state that a baseline of alkali

24 fly abundance is available, and I don't believe that there

25 is a baseline for alkali flies as a bird food. I don't

0686

01 believe we have a baseline for alkali flies as the birds see

02 them.

03 I would like to quote just one line from Auxiliary

04 Report Number 8. This is what I passed around yesterday.

05 What we do have is a historical -- we have some historical

06 data on the abundances of the larvae and the pupae as they

07 exist on the bottom of the lakes, submerged. And on Page 21

08 of the report it is stated:

09 Though larvae and pupae clearly become

10 aggregated on two of the substrates, there

11 are apparently no birds able to take

12 advantage of this submerged food source.

13 (Reading.)

14 I think that may be a little bit strong, but it

15 supports my contention that the historical baseline that we

16 have is largely unrelated to what the bird see as food. And

17 we also have no evidence, no data, historical data, on the

18 adult flies. And the preceding line on that page states:

19 Adult flies, aggregating on shores around

20 much of the perimeter of the lake, are focal

21 points for feeding by many shore birds.

22 (Reading.)

23 And we don't have any historical data on that. Another

24 important source of alkali flies to the birds are the

25 displaced individuals that float around on the water that

0687

01 drift. And the graph that I passed around yesterday shows

02 how difficult it is to get good numbers, good abundance

03 numbers. We only have one-years worth, and those were

04 inadequate to demonstrate a change in abundance in the drift

05 over several seasons when the density on the bottom went

06 from, say, less than 100 to 20 or 30,000. We were unable to

07 detect that difference in the drift. So, I doubt it would

08 be likely we would be able to pick up annual differences

09 that are going to be much less than that.

10 That is my reason. I don't think we have a historical

11 baseline. We do have a historical baseline for shrimp, and

12 we do understand how it interacts with food and its physical

13 and chemical environment. We don't know those things for

14 the fly. And for that reason, I think that the shrimp are a

15 much better choice as a monitoring tool.

16 MR. BIRMINGHAM: You are suggesting that it wouldn't be

17 of value to actually go out and study the alkali fly to gain

18 the information which you just said we don't have?

19 DR. WHITE: I think it is an interesting scientific

20 question.

21 MR. BIRMINGHAM: But it is not related to waterfowl

22 habitat monitoring?

23 DR. WHITE: No, it's not directly related to

24 monitoring. You would have to do that to see if the alkali

25 fly could every serve as a monitoring tool.

0688

01 MR. BIRMINGHAM: I never want to disappoint Mr. Dodge.

02 Yesterday, we agreed on something. Today, he never

03 wants to disappoint me. Tomorrow, peace in the Middle

04 East.

05 CHAIRMAN CAFFREY: You don't have to wait for that

06 third option to confuse us.

07 MR. BIRMINGHAM: Mr. Kavounas, Mr. Dodge asked you a

08 question about a statement contained on Page 98 of the

09 Appendix to the Mono Basin Waterfowl Habitat Restoration

10 Plan, and it was a statement by the three consultant who

11 prepared the plan.

12 Restoration of all potential waterfowl

13 habitat on Mill Creek does not appear --

14 (Reading.)

15 Excuse me, I am looking at the wrong page. Page 90, I

16 guess. This is with respect to the County ponds. And Mr.

17 Dodge asked you, in your opinion, the words that are used on

18 Page 90 represented high praise for the rewatering of the

19 completion of that aspect of the scientists' proposal, and

20 you said, in your opinion, it didn't.

21 And then Mr. Dodge said that I would ask the question

22 about why, in your view, these words don't represent

23 enthusiastic support.

24 Why, in your opinion, don't these words represent

25 enthusiastic support?

0689

01 MR. KAVOUNAS: I would like to -- because, in my mind,

02 it is not clear how this is any different than any other

03 waterfowl habitat. I don't understand why this would be

04 critical. I think this is an opinion offered by the three

05 scientists. You know, they don't seem to suggest why so

06 critical. The fact that Phase I to date has not added any

07 waterfowl habitat doesn't seem to phase them. No pun

08 intended. To me it's just another recommendation, like all

09 the rest. I don't understand why this would be critical.

10 The only adjectives I have seen is due to the fact that

11 the Department of Water and Power's dedication of its

12 irrigation right would be a major and significant first

13 step. That is the only one that I have seem that seemed, to

14 me, to place some value on a measure. I don't understand

15 why this would be critical.

16 MR. BIRMINGHAM: Did you discuss this with Dr. Jehl?

17 MR. KAVOUNAS: Yes, I did. And it is my opinion that

18 he shares the same belief.

19 MR. BIRMINGHAM: With respect to the program, the

20 DeChambeau Pond Program, you made reference to a well that

21 currently is being powered with propane; is that correct?

22 MR. TILLEMANS: That's correct.

23 MR. BIRMINGHAM: That well used to extract groundwater

24 to fill the pond?

25 MR. TILLEMANS: It is my understanding, yes.

0690

01 MR. BIRMINGHAM: Has that well always be powered with

02 propane?

03 MR. TILLEMANS: No. That was put in as a component of

04 the project. And it was a joint project previously

05 completed. It is my understanding it ran about 495,000,

06 something like that.

07 MR. BIRMINGHAM: When you say "495,000," that was the

08 cost of the project?

09 MR. TILLEMANS: Yes. Jointly funded with Ducks

10 Unlimited and Forest Service, I think, Mono Lake Committee,

11 and Caltrans.

12 MR. BIRMINGHAM: To your knowledge, has the cost of

13 operating that well contributed to the modification of that

14 program?

15 MR. TILLEMANS: From what I heard, the cost of

16 operating it is rather expensive, and the Forest Service

17 cannot maintain it because of that.

18 MR. BIRMINGHAM: Finally, Mr. Del Piero asked the panel

19 a question about environmental analysis that has been done

20 concerning the return of flows to both Wilson Creek and

21 Mill Creek. You referred to a number of comments that

22 weren't a formal environmental analysis, but did include

23 some discussion of the environmental impacts.

24 Is it correct, Mr. Kavounas, that Emilie Strauss also

25 submitted comments on the proposed rewatering of Mill Creek?

0691

01 MR. KAVOUNAS: I recall those.

02 MR. BIRMINGHAM: Those are contained in the document

03 that has been submitted and introduced into evidence, Mono

04 Basin comments in response to comments on the draft Stream

05 Restoration Plan and the Waterfowl Habitat Restoration Plan?

06 MR. KAVOUNAS: It should have been.

07 MR. DODGE: Objection, Mr. Chairman; those have not

08 been produced into evidence.

09 MR. KAVOUNAS: Part of our plan.

10 CHAIRMAN CAFFREY: We are at the half-hour mark, but

11 obviously we have to get an answer to this question. I want

12 to acknowledge that we are keeping track.

13 MR. BIRMINGHAM: This is my last question.

14 CHAIRMAN CAFFREY: I understand that and appreciate

15 that, Mr. Birmingham.

16 MR. BIRMINGHAM: I believe that it was introduced into

17 evidence yesterday as R-DWP-21.

18 MR. DODGE: I apologize. I thought you referring to

19 something in the People from Mono Basin.

20 CHAIRMAN CAFFREY: Thank you for that clarification,

21 Mr. Birmingham.

22 MR. BIRMINGHAM: Mr. Del Piero, those comments are at

23 C-179 of that document.

24 BOARD MEMBER DEL PIERO: C-179?

25 MR. BIRMINGHAM: Yes.

0692

01 BOARD MEMBER DEL PIERO: Thank you.

02 CHAIRMAN CAFFREY: Thank you very much, sir.

03 I believe that now takes us to recross. I'll go down

04 the list.

05 U.S. Forest Service.

06 UNIDENTIFIED VOICE: Withdraw.

07 CHAIRMAN CAFFREY: Bureau of Land Management.

08 UNIDENTIFIED VOICE: No, thank you, Mr. Chairman.

09 CHAIRMAN CAFFREY: People for the Preservation of Mono

10 Basin.

11 MS. BELLOMO: No questions. Thank you.

12 CHAIRMAN CAFFREY: Arcularius Ranch.

13 Richard Ridenhour.

14 California Trout, Mr. Roos-Collins.

15 MR. ROOS-COLLINS: No questions, Mr. Chairman.

16 CHAIRMAN CAFFREY: Department of Fish and Game, Ms.

17 Cahill.

18 MS. CAHILL: No questions.

19 CHAIRMAN CAFFREY: Ms. Scoonover representing State

20 Lands and California Department of Parks and Recreation.

21 --oOo---

22 //

23 //

24 //

25 //

0693

01 RECROSS EXAMINATION

02 BY STATE LANDS COMMISSION AND

03 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION

04 BY MS. SCOONOVER

05 MS. SCOONOVER: Mr. Kavounas, in your discussion with

06 Mr. Birmingham, you agreed that the Department of Water and

07 Power had some responsibility for damage caused from

08 incision at Rush and Lee Vining Creeks.

09 Is that correct?

10 MR. KAVOUNAS: I don't think so.

11 MS. SCOONOVER: Would you agree that the lowering of

12 Mono Lake contributed to incision in the Rush and Lee Vining

13 Creek deltas?

14 MR. KAVOUNAS: I have no opinion on that.

15 CHAIRMAN CAFFREY: I'm sorry, I didn't hear the answer.

16 MR. KAVOUNAS: I have no opinion on incision.

17 MS. SCOONOVER: Mr. Kavounas, would you agree with me

18 that the lowering of Mono Lake was due to, at least

19 partially, to the Department of Water and Power exports?

20 MR. KAVOUNAS: Yes.

21 MS. SCOONOVER: Are you aware of the impacts of lake

22 lowering on Mill Creek?

23 MR. KAVOUNAS: I am not aware.

24 MR. FRINK: Mr. Chairman, I would object to the scope

25 of the recross examination going beyond the scope of recross

0694

01 examination going beyond the scope of redirect.

02 MS. SCOONOVER: Mr. Chairman, I believe Mr. Birmingham

03 asked about the impacts to Mill Creek caused by the

04 Department of Water and Power as well as those caused by

05 other entities. That is the nature and scope of my

06 questioning.

07 MR. BIRMINGHAM: I have to agree with Ms Scoonover. I

08 think this is fair game, given my questions of Mr. Kavounas.

09 I will also acknowledge in the record there is testimony

10 from Dr. Stine that is already in evidence that the lowering

11 of the lake actually did cause incision at the delta of Mill

12 Creek. I think that is the point Ms. Scoonover is trying to

13 get at.

14 CHAIRMAN CAFFREY: I do recall Mr. Kavounas' answer

15 with regard to, at least a general answer, with regard to

16 degradation, if I may use that term, so you may proceed with

17 the questioning.

18 MS. SCOONOVER: It may be necessary, Mr Chairman, to

19 swear Mr. Birmingham in after all.

20 MR. BIRMINGHAM: I'm only referring to evidence in the

21 record, unlike my --

22 MR. DODGE: The one factual statement I made was that

23 that dedication ceremony was in April. I am sitting here

24 saying to myself I went over Tioga Pass to get there. It

25 wasn't in April.

0695

01 CHAIRMAN CAFFREY: I won't swear you in as yet.

02 MS. SCOONOVER: Mr. Kavounas, the waterfowl

03 recommendations made by the three scientists, who were

04 employed by the Department of Water and Power, weren't,

05 however, based on DWP's caused damage to Mill Creek, were

06 they?

07 Let me rephrase it.

08 The waterfowl scientists' plan referred to a lake

09 elevation of 6405 as being necessary to restore the

10 waterfowl habitat at Mono Lake.

11 Do you recall that?

12 MR. KAVOUNAS: Not specifically. If you say so, I am

13 sure we can find a reference to it.

14 MS. SCOONOVER: D-1631, Mr. Kavounas, referred to the

15 necessity of the Department of Water and Power to create a

16 Waterfowl Habitat Restoration Plan because the targeted lake

17 elevation would not restore all of the habitat, waterfowl

18 habitat, previously lost.

19 Do you recall that?

20 MR. KAVOUNAS: Yes, I do.

21 MS. SCOONOVER: So, the waterfowl scientists,

22 therefore, were looking to restore waterfowl habitat

23 throughout the Mono Basin in ways other than higher lake

24 elevations.

25 Is that accurate?

0696

01 MR. KAVOUNAS: I would have to assume what they were

02 thinking.

03 MS. SCOONOVER: Did the waterfowl scientists

04 recommend, as their number one priority, the raising of Mono

05 Lake to the targeted lake elevation identified in D-1631?

06 MR. KAVOUNAS: I believe they recognized that as the

07 most significant thing that would benefit waterfowl in the

08 basin.

09 MS. SCOONOVER: The waterfowl scientists' second

10 highest priority was what, Mr. Kavounas?

11 MR. KAVOUNAS: It was rewatering of Mill Creek.

12 MS. SCOONOVER: In the recommendations for rewatering

13 of Mill Creek, Mr. Kavounas, did the waterfowl scientists

14 specifically call out rewatering of the bottomland

15 distributary channels?

16 MR. KAVOUNAS: To my recollection they recommended

17 reopening the distributaries.

18 MS. SCOONOVER: Does the Department of Water and

19 Power's plan call for the reopening of the distributary

20 channels?

21 MR. KAVOUNAS: Not by mechanical means.

22 MS. SCOONOVER: Mr. Kavounas or Mr. Tillemans, was Dr.

23 Joe Jehl a part of the TAG process?

24 MR. TILLEMANS: No, he wasn't. He was suggested in a

25 list that was sent to the waterfowl experts to talk to, and

0697

01 he was never contacted.

02 MS. SCOONOVER: Are any of Dr. Jehl's opinions to which

03 you referred, Mr. Kavounas, present anywhere in the record

04 before the Water Board?

05 MR. KAVOUNAS: Not as direct quotes.

06 MS. SCOONOVER: Thank you.

07 Dr. White, as much as I'd love to continue our earlier

08 colloquy, I think it perhaps better not.

09 Thank you.

10 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

11 Mr. Dodge.

12 ---oOo---

13 RECROSS EXAMINATION

14 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE

15 BY MR. DODGE

16 MR. DODGE: Do you plan to bring back Joe Jehl in

17 rebuttal? That is a serious question.

18 MR. KAVOUNAS: Mr. Dodge, we contacted Mr. Jehl, to

19 have him as part of our panel, and he is in Washington this

20 week.

21 MR. DODGE: If someone will commit to me that Joe Jehl

22 will be here, I am going to limit my questions of this

23 gentleman.

24 CHAIRMAN CAFFREY: Mr. Birmingham, do you have an

25 answer to that?

0698

01 MR. BIRMINGHAM: No, I don't. A lot depends on when

02 the hearing is set. Dr. Jehl's availability.

03 CHAIRMAN CAFFREY: We have -- if I tell you now,

04 obviously, it is subject to adjustments until the notice is

05 up. But right now we are looking at the 13th and the 14th

06 of February as the earliest possible time when we can do

07 that.

08 BOARD MEMBER DEL PIERO: Somebody is having a heart

09 attack.

10 CHAIRMAN CAFFREY: That is Thursday and Friday, I

11 believe.

12 MR. BIRMINGHAM: I have a court appearance that was

13 actually this morning that we have had continued to the 13th

14 in an action Bell Marine Keys Municipal Water District, an

15 action pending in Marin Superior Court. That is the heart

16 attack.

17 CHAIRMAN CAFFREY: We will take another look at dates.

18 BOARD MEMBER DEL PIERO: It's always subject to

19 change.

20 CHAIRMAN CAFFREY: That is why we actually don't

21 announce it until it's officially announced. We'll do our

22 best.

23 MR. DODGE: Having had the opportunity to cross-examine

24 Joe Jehl in 1990, I can assure everyone that he will enliven

25 the proceedings considerably.

0699

01 BOARD MEMBER DEL PIERO: I was personally looking for

02 to it.

03 MR. DODGE: Why don't I pass on any questions of Mr.

04 Kavounas? If Dr. Jehl is going to attend, I will have some

05 questions for him, and I will reserve the right to ask Mr.

06 Kavounas questions if Dr. Jehl doesn't show up.

07 CHAIRMAN CAFFREY: Anybody have a problem with that?

08 Makes sense.

09 That is all you have, then, Mr. Dodge?

10 Thank you, sir.

11 That completes the recross. It does not complete the

12 recross, because staff has not yet asked any questions.

13 Staff, please.

14 ---oOo---

15 RECROSS EXAMINATION

16 BY BOARD STAFF

17 MR. CANADAY: Mr. Kavounas or Mr. Tillemans, in your

18 testimony you talk about outside funding for the

19 DeChambeau/County Pond complex. One potential source is the

20 North American Wetland Conservation Act. That is a matching

21 fund; is that correct. In other words, you would apply for

22 a grant and the City would match a certain amount?

23 MR. KAVOUNAS: To my acknowledge, yes.

24 MR. CANADAY: And the City is willing to, as they seek

25 outside funding, is not opposed to matching funds?

0700

01 MR. KAVOUNAS: That is correct.

02 MR. CANADAY: Thank you.

03 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

04 Anything else from staff?

05 MR. FRINK: No.

06 CHAIRMAN CAFFREY: Any questions from the Board

07 Members?

08 Thank you.

09 Do you wish, Mr. Birmingham, to offer your exhibits?

10 MR. BIRMINGHAM: Yes, I do. I got to 21 before Mr.

11 Dodge realized what it was.

12 The Department of Water and Power would offer, if I may

13 refer to them simply by number as opposed to the entire

14 reference, Exhibits 9 and 10, Exhibits 32, 33, 34 and 35,

15 and then Exhibits 64 and 65, which are the maps that have

16 been referred to.

17 CHAIRMAN CAFFREY: If there is no objection, those will

18 be entered into the record.

19 MR. BIRMINGHAM: Thank you very much.

20 CHAIRMAN CAFFREY: Mr. Canaday, you have a

21 clarification?

22 MR. CANADAY: I just have a comment when you are done.

23 CHAIRMAN CAFFREY: You are were going to say, Mr.

24 Birmingham?

25 MR. BIRMINGHAM: That concludes our presentation.

0701

01 CHAIRMAN CAFFREY: Thank you, sir. Want to thank

02 members of the panel: Mr. Tillemans, Mr. Kavounas were

03 there for well two full working days. We take a night and a

04 morning. We appreciate your diligence.

05 Thank you very much, gentlemen.

06 To all of you.

07 Thank you, Mr. Birmingham. And to all the parties.

08 All right. Mr. Canaday.

09 MR. CANADAY: Mr. Caffrey, State Board staff would like

10 to extend its appreciation to the staff of LADWP for the

11 development of the plan and their bringing forward

12 testimony. While we recognize there are differences of

13 opinions how those plans should be carried out, and they are

14 the subject of this hearing, nevertheless, the staff of

15 Department of Water and Power has made tremendous efforts to

16 comply and provide something for your review and your

17 consideration in this matter. We do appreciate their

18 cooperation.

19 MR. KAVOUNAS: Thank you for your kind words, Mr.

20 Canaday.

21 CHAIRMAN CAFFREY: Thank you, Mr. Canaday, for your

22 statement.

23 It is 25 minutes to 12. I believe next we would go to

24 is U.S. Forest Service. Is that correct?

25 Let me ask Mr. Gipsman, sir, do you plan to take the

0702

01 entire hour that is available to you?

02 MR. GIPSMAN: No. I think direct would take about ten

03 minutes.

04 CHAIRMAN CAFFREY: Obviously, you will take the time

05 you need within the hour. I was just wondering if we should

06 take an early break. I think it would be appropriate if

07 you're only ten minutes. Let's go now, then.

08 (Luncheon break taken.)

09 ---oOo---

0703

01 AFTERNOON SESSION

03 ---oOo---

04 DIRECT EXAMINATION

05 BY UNITED STATES FOREST SERVICE

06 BY MR. GIPSMAN

07 MR. GIPSMAN: Good morning, Mr. Chairman, Members of

08 the Board. Our appearance here will be brief. We have just

09 one witness, and that is Roger Porter, who is the manager

10 for the Mono Basin National Forest Scenic Area.

11 Mr. Porter has a prepared statement to make, and I

12 personally saw him take the oath.

13 CHAIRMAN CAFFREY: You saved me the trouble of asking

14 the question.

15 Good morning, Mr. Porter, welcome.

16 MR. PORTER: Good morning, Mr. Chairman.

17 I have been scenic area manager, in terms of my

18 qualifications, since 1992.

19 CHAIRMAN CAFFREY: Can you all hear Mr. Porter in the

20 back?

21 Pull up the mike a little closer. Thank you, sir.

22 MR. PORTER: As scenic area manager, I am responsible

23 for providing the coordination and planning for all

24 activities that occur on Forest Service land in the Mono

25 Basin. I have a degree in biology and I have a year of

0704

01 graduate in forestry. I have worked with the Forest Service

02 since 1971. I have served in both staff positions and

03 administrative positions.

04 My testimony today is primarily a summary of comments

05 that were already submitted to the Board on April 2nd of

06 1996, as comments to the draft Waterfowl and Stream

07 Restoration Plans. Enclosed is one example, USFS Exhibit 1,

08 which are comments that were generated by Forest Service

09 specialists in regards to the two plans.

10 In a cover letter, accompanying those comments, Dennis

11 Martin, the Inyo National Forest Service Supervisor,

12 highlighted those issues which were considered most

13 important to the Forest Service. Those included financing,

14 restoration of Mill Creek, coordinating with Southern

15 California Edison, and the need to provide adequate channel

16 maintenance flows.

17 Although the Forest Service supports attempts by Los

18 Angeles Department of Water and Power to secure outside

19 financing restoration projects, the Inyo National Forest

20 believes that DWP should bear the full responsibility for

21 the financing, the implementation, the monitoring, and the

22 operating and maintenance costs that are now needed as a

23 result of past diversion practices.

24 Forest Service doesn't believe that approval of

25 projects should be contingent upon the success of securing

0705

01 outside financing.

02 I also believe, in terms of financing, that we have

03 somewhat of an issue with what we perceived, anyway, as

04 ambiguous wording as to what it is DWP will actually

05 finance. As an example, the burns, DWP has stated that, if

06 we desire to burn on Forest Service land for purposes of

07 creating waterfowl habitat, that that is an activity of the

08 land management agency and should be the responsibility of

09 that agency.

10 We agree to a certain extent. However, we have to

11 recognize that some of the things that now need to be done

12 are not things that the Forest Service would do as a normal

13 part of its operations. It's being suggested as a direct

14 result of past practices by DWP in diverting water. It is

15 not something we would otherwise probably be doing.

16 Other examples in terms of financial issues are, for

17 example, the County Ponds, which today we've heard quite a

18 bit about. That had close to a $750,000 price tag. That is

19 a lot of money. But we would certainly like to see DWP

20 explore other ways of doing the County Pond Project that may

21 be significantly less expensive.

22 For example, it's the responsibility -- would be the

23 responsibility of DWP to provide a supply of water for the

24 County Ponds located below DeChambeau Ponds. They're

25 certainly free to consult with us about the water that we

0706

01 already have available. The estimate for drilling wells for

02 the County Ponds was, I believe, somewhere around half the

03 cost of the project. Well, we already have one well drilled

04 that provides 500 gallons per minute. So, we would like to

05 see those kinds of things further explored.

06 With regards to Mill Creek, the Inyo National Forest

07 and the Mono Basin National Forest Scenic Area Comprehensive

08 Management Plan both support restoration of the Mill Creek

09 to restore critical riparian and wetland habitat. Mill

10 Creek restoration is a key step in providing for a healthy

11 ecosystem in the North Basin.

12 However, the Forest Service does feel that prior to

13 making decisions on Mill Creek and Wilson Creek that some

14 sort of comprehensive watershed analysis should be

15 conducted. And we are a little concerned that that may not

16 happen in that there is -- you can break the issue down in

17 two ways. You can address what does it mean if DWP takes 16

18 cfs of water during the winter and puts it in Mill Creek.

19 That is not, to us, what we would consider a comprehensive

20 watershed analysis.

21 What we would like to see is address the entire North

22 Basin, which primarily means address Mill Creek and Wilson

23 Creek as to the relative values and the merits of where the

24 water should go. And that is a different analysis than just

25 what is the effect of diverting 16 cfs through the return

0707

01 ditch during the middle of winter. We think that with that

02 comprehensive analysis it then provides all of us with the

03 information, all of us that have water rights, with the

04 information that is needed in order for us to make

05 intelligent decisions.

06 Southern California Edison controls flows on most all

07 of the creeks within the basin, with the exception of Wilson

08 Creek. We feel that not all options with Southern

09 California Edison have currently been explored. We know

10 that DWP has actively talked with Southern California Edison

11 with regard to whether or not there is any way for them to

12 contribute to solving some of the problems that exist in the

13 basin with regards to channel maintenance flows, increasing

14 those, timing of releases. We do believe that there are a

15 couple of options that haven't, to the best of my knowledge,

16 been discussed with SCE yet.

17 For example, FERC is in the process of coming close to

18 issuing a license for both Mill Creek, which is one of the

19 hydro power plants, and for Rush Creek and also, shortly

20 thereafter, Lee Vining Creek. Part of what we have through

21 the TAG meetings heard SCE say is that their flexibility,

22 for lack of a better word, is somewhat limited by the

23 conditions of their FERC license.

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

25 CHAIRMAN CAFFREY: Yes, Mr. Birmingham.

0708

01 MR. BIRMINGHAM: The witness is going well beyond the

02 scope of his written direct examination. I have no

03 objection to going beyond the scope to a limited degree, but

04 now he's well, well beyond what is contained in his written

05 direct examination, and, in fact, is getting in some

06 rebuttal.

07 I wonder if we could limit the direct testimony to what

08 was offered in writing?

09 CHAIRMAN CAFFREY: Yes. That is pertinent and

10 essential. And, gentlemen, please keep your testimony

11 within the scope of what you have submitted as your exhibits

12 and as your testimony.

13 MR. PORTER: I can do that, sir.

14 MR. DODGE: Excuse me, it looks to me like Point 5 on

15 his statement is exactly what he was talking about.

16 CHAIRMAN CAFFREY: The level of specificity of -- I was

17 just giving it as an admonishment. I was not referring to

18 any particular words. And if Mr. Birmingham has something

19 in particular he wants to mention, I'd certainly listen to

20 it.

21 MR. BIRMINGHAM: Mr. Dodge is correct to the extent

22 that Paragraph 5 talks about Southern California Edison.

23 But what the witness is now doing is responding to evidence

24 submitted by DWP concerning what it has done with respect to

25 trying to enlist the assistance of Southern California

0709

01 Edison, which -- what he says on Paragraph 5, is that

02 Southern California Edison has control of the flows in its

03 watershed and that they should be consulted. We agree with

04 that. But he is not saying that DWP may not have done

05 enough, which I think is rebutting what DWP has already

06 presented.

07 CHAIRMAN CAFFREY: Mr. Gipsman, I agree with Mr.

08 Birmingham that that seems to be outside the scope. I

09 realize your witness is not attorney, but -- I am sorry, do

10 you have an answer to that?

11 MR. GIPSMAN: I don't think it is that far afield. I

12 don't think it makes a deference. We may get these

13 questions on cross, anyway.

14 CHAIRMAN CAFFREY: That is what I was thinking. I

15 think you would probably get to it somewhere else in the

16 procedure.

17 MR. BIRMINGHAM: If they wouldn't have before, they

18 will now.

19 CHAIRMAN CAFFREY: Astute observation.

20 Okay. Please continue, Mr. Porter.

21 MR. PORTER: We also believe that adequate channel

22 maintenance flows for Rush Creek, Lee Vining Creek, Walker

23 and Parker are critical to the management of federal lands.

24 As such, the Inyo National Forest certainly supports the

25 peak channel maintenance flows as recommended by the stream

0710

01 scientists. And that concludes my testimony.

02 CHAIRMAN CAFFREY: Thank you very much, sir.

03 All right. Is there anything else you wish to add.

04 MR. GIPSMAN: No, there isn't. We are ready for cross.

05 Do you want to do that before lunch or after?

06 CHAIRMAN CAFFREY: It looks like it must be about 12

07 minutes to 12. Maybe we can get a little jump on the lunch

08 crowds. Why don't we break now and come back at 1:00 and

09 start with the cross.

10 Thank you.

11 (Luncheon break taken.)

12 ---oOo---

0711

01 AFTERNOON SESSION

02 ---oOo---

03 CHAIRMAN CAFFREY: Let's resume the hearing.

04 If you will indulge me a moment, Mr. Birmingham.

05 Let's have a little discussion about some dates for

06 continuance. Mr. Del Piero and I were discussing this

07 morning the possibility of the 13th and the 14th of February

08 as continuation dates. We noted that a couple of you had

09 some problems with that. We want to avoid, both for our

10 sake and yours, doing this one day at a time. We would like

11 to get blocks of days. I am sure it conveniences you all,

12 as it does us. The next best thing we could come up with

13 would Tuesday, Wednesday, and Thursday, that is February

14 24th, 25th, and 26th. Hopefully, that won't cause a

15 nightmare.

16 MS. GOLDSMITH: Tuesday is the 25th.

17 CHAIRMAN CAFFREY: I am sorry, that is right. 24th,

18 25th, 26th; that is a Monday, Tuesday, and a Wednesday.

19 How is that for everybody?

20 That is not possible?

21 MR. ROOS-COLLINS: Mr. Chairman, I am sorry, I am not

22 available on those dates.

23 CHAIRMAN CAFFREY: That is really about all --

24 MR. DODGE: It seems to the 13th and the 14th, there

25 were a couple of lawyers who had hearings. Did they try to

0712

01 get someone else to cover them?

02 CHAIRMAN CAFFREY: The same question could go -- with

03 all due respect, the same question could go for Mr.

04 Roos-Collins, as well.

05 MR. DODGE: Sure, sure.

06 CHAIRMAN CAFFREY: Does anybody have any options

07 because after that -- I hate to be -- I would like to get

08 your agreement. I don't want to be dogmatic about it, but

09 after that we are getting into some heavy scheduling for the

10 Board and some inability to meet for maybe quite a while.

11 MR. ROOS-COLLINS: Mr. Chairman.

12 CHAIRMAN CAFFREY: Mr. Roos-Collins.

13 MR. ROOS-COLLINS: Are those two blocks the only blocks

14 that are available for this Board in February?

15 CHAIRMAN CAFFREY: Actually, pretty much so because,

16 quite frankly, those two blocks are built around Mr. Del

17 Piero and I, that have a great deal of interest in this

18 matter, and still is providing needed flexibility for the

19 other Board Members. The constant will be Mr. Del Piero and

20 myself. I will and they all have a great deal of interest

21 in it.

22 MR. ROOS-COLLINS: Mr. Chairman, since Mr. Birmingham

23 has adjusted his schedule once for the case now scheduled

24 for February 12th and 13th, I will attempt to do the same

25 for my commitments on February 24th through 26th.

0713

01 CHAIRMAN CAFFREY: That is very much appreciated.

02 MR. ROOS-COLLINS: I withdraw my objections.

03 CHAIRMAN CAFFREY: I very much appreciate that. I will

04 tell you what we are going to do, we can all help each other

05 out by -- I don't mean to apply that we are going to use up

06 all those three days. If we can do it in less time, that is

07 certainly desirable for all of us.

08 MR. DODGE: Mr. Chairman, I can be here on those three

09 days, 24th, 25th and 26th. One of my prime witnesses, Dr.

10 Reid of Ducks Unlimited informed that he is in Asia until

11 March 5th. So, I would request the opportunity to present

12 Dr. Reid at some time. But I am happy to go forward on the

13 24th, 25th, and 26th.

14 CHAIRMAN CAFFREY: You're asking for an additional

15 hearing day?

16 MR. DODGE: It would have to be that. It could be half

17 a day, if that is all that is left. He is leaving on the

18 20th and he is returning on March 5th. I informed Mr. Frink

19 of this yesterday.

20 MR. BIRMINGHAM: I wonder if we can do with Dr. Reid

21 what we did with Mr. Vestal, and that would be --

22 CHAIRMAN CAFFREY: Which was?

23 MR. BIRMINGHAM: In the original hearing which was to

24 take a video deposition of the witness because of his

25 unavailability. And then that videotape was viewed by

0714

01 Members of the Board.

02 CHAIRMAN CAFFREY: That would be agreeable to me.

03 Mr. Frink, any problem with that?

04 MR. FRINK: I have no problem.

05 CHAIRMAN CAFFREY: I have no problem with that if that

06 is agreeable to you, Mr. Dodge.

07 MR. DODGE: I would prefer to have Dr. Reid here in

08 person. Let me suggest this. I think this is a fair

09 compromise. If we are completed with everything on the

10 24th, 25th, and 26th, in other words, the whole hearing is

11 done, then, by all means, let's not reconvene. We will have

12 a videotape of Reid.

13 I suspect that, based on the fact there is going to be

14 rebuttal, that we were not going to be done. Therefore, I

15 would present Dr. Reid as part of my direct examination when

16 next we meet.

17 CHAIRMAN CAFFREY: As part of your direct examination

18 for some time after --

19 MR. DODGE: The 24th, 25th, 26th.

20 CHAIRMAN CAFFREY: Let me try something else.

21 Ms. Cahill.

22 MS. CAHILL: I was just wondering, I know we didn't

23 want to do one day at a time, but if the 14th was available,

24 whether we could do Dr. Reid on the 14th.

25 CHAIRMAN CAFFREY: That is what I was about to get to.

0715

01 Was the 13th that was the problem for you?

02 MR. BIRMINGHAM: Yes, it was.

03 CHAIRMAN CAFFREY: That leaves us with a possibility of

04 the fourteenth. There was another day, also, which was

05 February the 18th.

06 Would either of those days work for your witness?

07 MR. DODGE: The 14th and 18th?

08 CHAIRMAN CAFFREY: Of February. Would either one of

09 those days work for your witness, Mr. Dodge?

10 MR. DODGE: We are going to call right now and find

11 out. CHAIRMAN CAFFREY: Mr. Roos-Collins, is that a

12 problem for you?

13 MR. ROOS-COLLINS: You are considering the 14th as a

14 say for the Mono Lake Committee presentation of Dr. Reid?

15 CHAIRMAN CAFFREY: No. Actually, what I was just

16 suggesting is when I opened up this afternoon's session, I

17 stated that we were trying to avoid having these hearings or

18 these continuances one day at a time, and I am trying to do

19 it in blocks of days. I didn't mention any dates until just

20 a moment ago that were available one day at a time. Those

21 two are the 14th and the 18th. That is at the convenience

22 of the Board. I didn't get a chance to ask any of you

23 that. That would be for just a full hearing day, continue

24 at that time.

25 We would accommodate somehow -- if we weren't in some

0716

01 direct testimonial situation for Mr. Dodge, do it all on his

02 own, maybe we could bring that to the table at that time.

03 Mr. Birmingham.

04 MR. BIRMINGHAM: My availability on the 13th is in the

05 morning. I have a hearing in Marine County, as I mentioned,

06 that was originally scheduled for this morning. I should be

07 back in Sacramento by early afternoon. Perhaps what we can

08 do is plan on starting early in the afternoon on the 14th

09 and going --

10 CHAIRMAN CAFFREY: On the 13th?

11 MR. BIRMINGHAM: On the 13th, excuse me, and then going

12 over to the 14th and put Dr. Reid on on the 14th.

13 CHAIRMAN CAFFREY: That would work.

14 Would that work for you.

15 MR. DODGE: I can be here.

16 CHAIRMAN CAFFREY: You are still calling. I'm sorry.

17 MS. BELLOMO: Chairman Caffrey.

18 CHAIRMAN CAFFREY: Ms. Bellomo, I'm sorry, I didn't get

19 a chance to hear from you yet.

20 MS. BELLOMO: I will not be able to be here the week of

21 the 10th because of my employment. But I am available the

22 entire week of the 17th and the 24th. If you were just

23 going to have one witness and it was Mr. Reid, I did have

24 cross-examination for him. If the only way he can testify

25 is testify on a single day, when I can't be here, perhaps I

0717

01 can submit some questions for someone else to ask them for

02 me. If you are going to take more than one witness, I would

03 ask that we just concern ourselves less with Mr. Reid's

04 conflict and more about the participants.

05 CHAIRMAN CAFFREY: The 13th and 14th are an

06 impossibility for you?

07 MS. BELLOMO: Yes.

08 MR. ROOS-COLLINS: And for me.

09 CHAIRMAN CAFFREY: We are back to the 24th, 25th, and

10 26th. That represents a problem for your witness.

11 MR. DODGE: Presents a problem for our consultant,

12 Peter Vorster.

13 CHAIRMAN CAFFREY: He can't be here on the 24th, 25th,

14 and 26.

15 MR. VORSTER: I can be here the 24th and part of the

16 26th.

17 CHAIRMAN CAFFREY: We are going to have to go with the

18 24th, 25th, and 26th, and just do the best we can.

19 Hopefully, we can figure away to accommodate your witness,

20 Mr. Dodge, either through the video capacity, or if we have

21 to go beyond that point, I hate the thought of bringing

22 everybody back.

23 MR. DODGE: Dr. Reid is available on the 18th, February

24 18th.

25 CHAIRMAN CAFFREY: That could be a day if -- I didn't

0718

01 hear anybody say the 18th was impossible. It is just that

02 it is a one-day situation.

03 MS. BELLOMO: I didn't mean to interrupt.

04 CHAIRMAN CAFFREY: That's all right. Go ahead, Ms.

05 Bellomo.

06 MS. BELLOMO: I was just going to say that we are only

07 going to make one trip back. We can't come back for one day

08 and then come the next week for more days. So, if you are

09 going to take Mr. Reid on that one day, if you just do the

10 one witness, in the interest of letting this process go

11 forward, I will find someone, hopefully, that will ask

12 questions for me, maybe some participant here or I can give

13 some questions to the staff.

14 If you are going to take more than on witness on the

15 18th, and then reconvene the next week, we really are going

16 to disadvantaged by that.

17 CHAIRMAN CAFFREY: Everybody hang on for a moment.

18 Ms. Scoonover.

19 MS. SCOONOVER: Mr. Caffrey and Board Members, although

20 either Mike Valentine or I can be here on any of the days --

21 CHAIRMAN CAFFREY: You say you can be here?

22 MS. SCOONOVER: We will be here. I do have witnesses

23 who are college professors, so certain days of the week are

24 out of the question for them. So, I guess what I would

25 request is some flexibility within the new dates that are

0719

01 scheduled that, perhaps, the order of witnesses might have

02 to be manipulated in order to accommodate Fritz Reid, in

03 order to accommodate Dr. Stine, and other witnesses. Some

04 deference.

05 CHAIRMAN CAFFREY: I will do everything I can.

06 Certainly goes without saying that we will do everything we

07 can to accommodate you all as long as it is within the realm

08 of reasonableness. As long as we get somebody around here

09 that is smart enough to keep track of it, because it may not

10 be me.

11 How does everybody feel about coming in -- the concern

12 I have, Ms. Bellomo, I want to accommodate you in every way

13 I possibly can. The concern I have about bringing everybody

14 back here for just a small part of one day to hear from one

15 witness and cross-examine, it is really a lot of

16 expense, and it concerns me.

17 That is fine if we only hear the one witness on a day

18 other than -- on a day before the 18th. What she is saying

19 is she can't -- did I hear -- now you've added that you

20 can't come back twice.

21 MS. BELLOMO: I can't come on the 18th and then turn

22 around and come the very next week.

23 CHAIRMAN CAFFREY: I would suggest, with great respect,

24 that you may have an ongoing problem because I can't

25 guarantee that we will be done, even if we go on 18th and

0720

01 then go to the 24th, 25th, and 26, I cannot guarantee that

02 it will be finished because I don't know how many questions

03 people are going to have, what is going to crop up in

04 cross-examination.

05 MR. FRINK: Mr. Chairman.

06 CHAIRMAN CAFFREY: Yes, Mr. Frink.

07 MR. FRINK: It appeared that the only clear problem we

08 had is going on the 18th or -- the only one we were going to

09 schedule the 18th, in the first place, is Dr. Reid.

10 CHAIRMAN CAFFREY: That's right.

11 MR. FRINK: If we could proceed with Dr. Reid and if

12 Ms. Bellomo could submit any questions she has, we would

13 attempt to get answers and follow up as best we can on

14 them.

15 The next party, I believe, in line would be California

16 Trout, and as I understand it, the testimony that you are

17 going to present is limited to fisheries issue; is that

18 right, Mr. Roos-Collins?

19 MR. ROOS-COLLINS: That's right.

20 MR. FRINK: Would that present a problem, Ms. Bellomo,

21 in regards to California Trout?

22 MS. BELLOMO: No. We don't have any questions for

23 California Trout.

24 CHAIRMAN CAFFREY: So, there is a way to or for perhaps

25 at least the order is already arranged in such a way that we

0721

01 can get -- if we schedule the 18th, and had Mr. Dodge's

02 witness in and you were to convey or somebody were to convey

03 the questions that Ms. Bellomo has, that --

04 MR. BELLOMO: We would like to pick the nicest member

05 of staff for that.

06 MR. BIRMINGHAM: I will volunteer.

07 MR. ROOS-COLLINS: Mr. Chairman, before we set in

08 concrete California Trout's appearance on the 18th, I need

09 to check with my three witnesses as to their availability.

10 CHAIRMAN CAFFREY: Please do so, sir.

11 MR. ROOS-COLLINS: Mr. Vorster.

12 MR. VORSTER: The 18th is fine with me.

13 MR. ROOS-COLLINS: Dr. Stine.

14 DR. STINE: The 18th I can't do. I am missing two days

15 of school now.

16 MR. DODGE: Dr. Stine will be back later.

17 CHAIRMAN CAFFREY: That will come under rule of

18 accommodation.

19 Mr. Frink, am I driving you crazy?

20 MR. FRINK: No, no. I think it is looking good. We

21 can go the 18th, 24th, 25th, 26th.

22 MR. DODGE: I can add, if you want to make me a panel,

23 I've got minutes of Dave Shuford on waterfowl monitoring. I

24 can try to get him here on the 18th, unless Ms. Bellomo

25 prefer I didn't.

0722

01 MS. BELLOMO: Who would be the panel?

02 MR. DODGE: Dave Shuford on waterfowl monitoring.

03 CHAIRMAN CAFFREY: Let's do this, too. Let's lock in

04 on those four days. That would allow you, Mr. Dodge, to

05 have your witness in. And then, as time goes on here, if

06 there are other accommodations that people want to offer, as

07 some of you have graciously have, and we appreciate that,

08 please let Mr. Frink know. We will do everything we can to

09 accommodate everybody, and let you all know what is going

10 on.

11 MR. DODGE: One of our primary witnesses is, of course,

12 Peter Vorster. As you try to wade through his testimony,

13 you know that. He is not available on the 25th or the

14 26th. So, I want to let the Board know that in advance.

15 CHAIRMAN CAFFREY: That is why we need to have people

16 here for his appearance.

17 UNIDENTIFIED VOICE: I might be able to get you on the

18 24th or the 18th.

19 CHAIRMAN CAFFREY: Again, that will come under

20 accommodation.

21 Mr. Frink, do you hear anything that is not

22 manageable?

23 MR. FRINK: No. I think if we go with those days, one

24 or another we will be able to work it out.

25 MR. DODGE: Time permitting, we may do Mr. Vorster on

0723

01 the 18th. He will be here, so why not.

02 CHAIRMAN CAFFREY: All right. That may require a

03 slightly revised schedule in writing, so we can all keep

04 track of it. I will ask Mr. Frink to make a determination,

05 if that makes sense. My list I am using up here may now

06 become stale very quick. I think that sorts that out.

07 I will just repeat for the record that we'll adjourn

08 sometime this afternoon, probably between the hours of four

09 and five, and then we will continue this hearing to February

10 18th, that is a Tuesday, and after that February 24th, 25th,

11 and 26th. That is Monday, Tuesday, and Wednesday.

12 BOARD MEMBER BROWN: 9:00 a.m.

13 CHAIRMAN CAFFREY: Always in this room at 9:00 a.m.

14 Thank you all very much.

15 Now, that takes us to cross-examination of U.S. Forest

16 Service, and good afternoon, Mr. Birmingham. Please begin.

17 MR. BIRMINGHAM: Thank you.

18 ---oOo---

19 CROSS-EXAMINATION

20 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

21 BY MR. BIRMINGHAM

22 MR. BIRMINGHAM: Good afternoon, Mr. Porter. I am Tom

23 Birmingham, I am the attorney that represents the Department

24 of Water and Power of the City of Los Angeles in these

25 proceedings. I have just a few questions of you.

0724

01 Paragraph 6 of your testimony states that:

02 Adequate channel maintenance flows for Rush,

03 Lee Vining, Walker and Parker Creeks are

04 critical to the management of federal lands.

05 As such, the Inyo National Forest supports

06 the peak channel flows as identified in the

07 stream scientists' stream report dated

08 October 4, 1995. (Reading.)

09 Is that correct? Did I accurately state your testimony?

10 MR. PORTER: Yes, you did.

11 MR. BIRMINGHAM: The Forest Service didn't conduct any

12 independent analysis to determine the flows necessary for

13 the proper management of the Forest Service lands, did it?

14 MR.PORTER: That's correct.

15 MR. BIRMINGHAM: Have you or has the Forest Service

16 consulted with any expert stream scientists concerning the

17 flows required for the proper management of federal lands

18 other than Drs. Ridenhour and Trush and Mr. Hunter?

19 MR. PORTER: Not that I am aware of.

20 MR. BIRMINGHAM: Essentially, you are just endorsing

21 the flows in the October 4, 1994 report?

22 MR. PORTER: That is correct.

23 MR. BIRMINGHAM: You understand that report was

24 prepared by Drs. Trush and Ridenhour and Mr. Hunter?

25 MR. PORTER: Yes, I do.

0725

01 MR. BIRMINGHAM: If Drs. Trush and Ridenhour and Mr.

02 Hunter were of the view that the flows proposed by the

03 Department of Water and Power, given its monitoring plan,

04 were adequate to comply with the terms of D-1631, you would

05 change your view, wouldn't you?

06 MR. PORTER: At this point I know don't know if I

07 could answer that without talking to our specialists.

08 But I will say, up to this point, we have relied on the

09 consultants that were hired by DWP to make our assessment of

10 what the deep channel flows should be. We have not, up to

11 this point, relied on anyone else.

12 MR. BIRMINGHAM: Let's turn, if we can, to Mill Creek.

13 You said that rewatering of Mill Creek is a key step in the

14 provision of a healthy ecosystem in the North Basin.

15 MR. PORTER: That's correct.

16 MR. BIRMINGHAM: Then you talked about conducting a

17 comprehensive water analysis to address the entire basin; is

18 that correct?

19 MR. PORTER: The entire North Basin, which, to me, to

20 clarify, is to address the trade-offs between such things as

21 Wilson Creek versus Mill Creek, irrigation of Thompson

22 Meadow, irrigation of Conway Ranch, those kind of things.

23 MR. BIRMINGHAM: You indicated that before any final

24 decision could be made, that kind of comprehensive analysis

25 would have to be made?

0726

01 MR. PORTER: We would want to -- well, what definitely

02 has to be made prior to the Forest Service changing or for

03 the Board to change its water right, is an environmental

04 analysis.

05 MR. BIRMINGHAM: To what use has the Forest Service put

06 its water rights for the last five years?

07 MR. PORTER: Within the last five years, we have used

08 it on the ranch, DeChambeau Ranch. I think the last time we

09 did that, if memory serves me right, was 1992, '93.

10 MR. BIRMINGHAM: Now, you have indicated from the

11 Forest Service perspective, rewatering Mill Creek is a key

12 step in the provision of a healthy ecosystem. Has there

13 been anything that has prevented the Forest Service from

14 rededicating its water rights to Mill Creek?

15 MR. PORTER: Has there been anything that has prevented

16 us?

17 MR. BIRMINGHAM: Has there been a legal impediment that

18 has prevented you from rededicating that water to Mill Creek?

19 MR. PORTER: Not that I am aware of.

20 MR. BIRMINGHAM: Has there been a physical impediment

21 that has prevented you from rededicating your water right to

22 Mill Creek?

23 MR. PORTER: Physically, I would say I think so. I

24 think at this point in point, without some other form of

25 return ditch, that we take our water out of Wilson Creek,

0727

01 both of the ditches that serve the ranch are on Wilson

02 Creek. And once it is in Wilson Creek, I am unaware of any

03 physical means of transporting it back to Mill Creek.

04 MR. BIRMINGHAM: The study that you referred to, from

05 your perspective, would consider trade-off. Have you

06 expressed support for the waterfowl scientists' proposal to

07 carry out the DeChambeau/County Pond proposal; is that

08 correct?

09 MR. PORTER: Are you asking me if I have showed support

10 for County Ponds?

11 MR. BIRMINGHAM: Yes.

12 MR. PORTER: Think at this point one of the things we

13 have to keep in mind, I think you said it earlier on the

14 first day, is there are additional hoops to go through

15 besides just what is before the Board. One of those, in the

16 case of the County Ponds would be an environmental

17 analysis, and the same for, I believe, Black Point, which is

18 federal land.

19 In both those cases, an environmental analysis would

20 have to be done before a decision is made as to whether or

21 not to go forward with those projects.

22 MR. BIRMINGHAM: Isn't is it correct, Mr. Porter, then,

23 in fact, rewatering Mill Creek could reduce the spring flows

24 into the DeChambeau Pond?

25 MR. PORTER: Well, two things. One, maybe I should

0728

01 explain it currently. DeChambeau Ponds are not watered by

02 springs; that is not the source of the water in DeChambeau

03 Ponds. It is a 942-foot deep, hot water artesian well that

04 is providing the water.

05 MR. BIRMINGHAM: Do you think that the irrigation of

06 land from Wilson Creek supports the water table that results

07 in 942-foot well?

08 MR. PORTER: Actually, I don't feel qualified to answer

09 that question. I think that if we were to drill additional

10 wells, it is a question that needs to be addressed that I do

11 not have an answer for.

12 MR. BIRMINGHAM: What was the original cost estimate

13 that the Forest Service prepared in order for the Forest

14 Service to carry out the DeChambeau Ponds Project on Forest

15 Service land?

16 MR. PORTER: Well, the Forest Service didn't really do

17 the project design. We reviewed it, but the project design

18 was done by Ducks Unlimited.

19 MR. BIRMINGHAM: That was Dr. Reid?

20 MR. PORTER: Dr. Reid and Robert Charlie, both of Ducks

21 Unlimited.

22 MR. BIRMINGHAM: Do you recall what the original cost

23 estimate was to carry out that project?

24 MR. PORTER: Within a pretty close proximity.

25 MR. BIRMINGHAM: Within a close approximate, what was

0729

01 it?

02 MR. PORTER: It was around $350,000 from Caltrans, and,

03 then about, if I believe right and memory serves me correct,

04 about 80,000 from Ducks Unlimited. And then there was also

05 counted in the cost was contributed time by Forest Service

06 and others.

07 MR. BIRMINGHAM: If memory serves you correctly, it was

08 a little bit in excess of $430,000?

09 MR. PORTER: Yes.

10 MR. BIRMINGHAM: Earlier you made reference to a

11 $750,000 project. Was that the DeChambeau Project?

12 MR. PORTER: No. I think the cost estimate for doing

13 the County Ponds was around 750,000.

14 MR. BIRMINGHAM: Is the DeChambeau Project still in

15 operation?

16 MR. PORTER: Yeah. We are in the process right now of

17 trying to use bentonite to seal the ponds. We have about

18 five days worth of work left to complete that.

19 MR. BIRMINGHAM: In your testimony you stated that the

20 Inyo National Forest believes that DWP should bear the full

21 responsibility for financing, implementation, monitoring,

22 and operating and maintenance costs that are now needed as a

23 result of past diversion practices by DWP.

24 MR. PORTER: Yes, that is what I stated.

25 MR. BIRMINGHAM: Is it correct, Mr. Porter, that if an

0730

01 activity will correct environmental damage caused by an

02 entity other than DWP, that it would be Inyo National

03 Forest's position that DWP shouldn't be expected to pay the

04 full cost of that activity?

05 MR. DODGE: Actually calls for speculation. I object.

06 Mr. Chairman, may I address you, sir?

07 CHAIRMAN CAFFREY: Yes, sir.

08 MR. DODGE: We have spent a fair amount of time with

09 people testifying as to who should pay for various projects.

10 I guess it occurs to me that that is a question of law

11 rather than a question of fact. If it is a question of law,

12 then we should brief the question of law and be done with it

13 rather than have a lot of people state their opinion as to

14 who should pay. I don't know how you feel about it.

15 CHAIRMAN CAFFREY: Mr. Brown has a thought or a

16 question.

17 Mr. Brown.

18 BOARD MEMBER BROWN: If I understood redirect correctly

19 yesterday, the question was asked by Mr. Birmingham to the

20 panel, and I believe I heard the gentleman from the L.A.

21 Department of Water and Power state they are going to pay

22 for the projection regardless of whether the funding may or

23 may not come from. I see that as being a moot issue.

24 MR. DODGE: If that was the testimony, then I believe

25 it is a moot issue. I don't remember it that way.

0731

01 MR. BIRMINGHAM: I am not sure that was the testimony,

02 Mr. Brown. I think that the witness may have testified that

03 the Department is willing to pay its share for certain

04 projects, but not necessarily the entire cost.

05 BOARD MEMBER BROWN: Mr. Frink, I believe that question

06 was specifically asked, and I'm quite sure, I am not

07 positive, but I am quite sure that the plan would proceed

08 regardless of whether the contribution of funding may or may

09 not come.

10 MR. FRINK: I think it is a policy question, and

11 unless agreement was reached it would be a legal question.

12 I think the representative who appeared on behalf of the

13 Board of the Department of Water and Power Commissioners

14 indicated that the City of Los Angeles and the Board of the

15 Department of Water and Power Commissioners are committed to

16 funding the cost of the actions proposed in their plan, and

17 if future things are eventually determined to be necessary

18 by this Board, that they would be committed to undertake

19 that, as well.

20 I don't believe that there has been any representations

21 made that the City of Los Angeles was prepared to pay for

22 things that really weren't in their plan and haven't been

23 ordered by the Board.

24 BOARD MEMBER BROWN: As I recall, that is exactly what

25 I meant.

0732

01 MR. BIRMINGHAM: Mr. Frink is correct. I am sorry.

02 CHAIRMAN CAFFREY: In regard to Mr. Dodge's concern, I

03 don't know how much discussion, cross, recross there is

04 going to be about this subject. I am not inclined to limit

05 it at this point. I appreciate your offer for the

06 briefing.

07 MR. BIRMINGHAM: May I comment on that?

08 I concur with --

09 CHAIRMAN CAFFREY: Don't confuse me.

10 MR. BIRMINGHAM: I am probably going to. I concur with

11 Mr. Dodge, that questions of what DWP can be compelled to

12 pay for, who should pay are questions of law. What I would

13 propose doing is striking all of the testimony that relates

14 to DWP's obligation to pay for things.

15 MR. DODGE: I was trying to solve the problem of going

16 forward, basically. I am not prepared to agree to strike

17 anything.

18 CHAIRMAN CAFFREY: He is only taking advantage of his

19 apparent opportunity.

20 Why don't you proceed as you were.

21 MR. PORTER: Please, can you repeat it? I think I have

22 forgotten it.

23 MR. BIRMINGHAM: Let me see if I can state the question

24 again. If an activity will correct environmental damage

25 caused by an entity other than DWP, it would be the position

0733

01 of the Inyo National Forest that DWP shouldn't be expected

02 to pay the entire cost of that program?

03 MR. PORTER: Well, let me explain that this way: My

04 understanding, anyway, is that one of the things that we

05 agreed to was, more or less, what we identified as off-site

06 mitigation. That if DWP said it is either unreasonable to

07 do a particular thing with, say, at Rush Creek, that they

08 have the option of going elsewhere in the basin and

09 creating, say, waterfowl habitat in an area that they had

10 not diverted water from. And if, as part of that, DWP were

11 to say. "We can't do this at Rush Creek, but we can do this

12 at County Ponds," wherever, then I would expect that that

13 would be part of their plan and the same as other elements

14 in the plan, that DWP would pay for that.

15 And that is a little bit different than saying, "Should

16 Mono Basin be responsible for SCE's practices or ranch

17 owners' practices, et cetera.

18 MR. BIRMINGHAM: You would agree that DWP shouldn't be

19 responsible for SCE's practices?

20 MR. GIPSMAN: Objection. He just asked a question. He

21 got an answer, and maybe he didn't like the answer, but he

22 got an answer.

23 CHAIRMAN CAFFREY: Were you asking for a

24 clarification?

25 MR. BIRMINGHAM: Yes, I was asking for clarification.

0734

01 CHAIRMAN CAFFREY: I am not sure about that. I am

02 sorry, I probably didn't hear the answer that well, I am not

03 quite sure it was a total restatement of the question. Why

04 don't you try it one more time.

05 MR. BIRMINGHAM: You're not saying that DWP should be

06 responsible for SCE's practices, are you?

07 MR. PORTER: No, I am not saying that.

08 MR. BIRMINGHAM: Or a rancher's practices?

09 MR. PORTER: No.

10 MR. BIRMINGHAM: You would agree that neither the

11 Forest Service nor any other land management agency within

12 the Mono Basin should receive a windfall resulting from

13 DWP's activities to restore waterfowl habitat in the Mono

14 Basin?

15 MR. PORTER: No, I am not suggesting that. I am

16 suggesting, though, that if it is suggested as a part of

17 your plan that you want to do something on Forest Service

18 land, then that should be treated as no different than any

19 other proposed project.

20 MR. BIRMINGHAM: I have no further questions.

21 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

22 Bureau of Land Management, any questions?

23 MR. RUSSI: No, thank you, Mr. Chairman.

24 CHAIRMAN CAFFREY: People for the Preservation of Mono

25 Basin. Ms. Bellomo.

0735

01 ---oOo---

02 CROSS-EXAMINATION

03 BY THE PEOPLE FOR THE PRESERVATION OF MONO BASIN

04 BY MS. BELLOMO

05 MS. BELLOMO: Before we begin at length this afternoon,

06 I would like to ask you some questions about photographs

07 that are in our testimony. You don't have that up with you.

08 I want to give you a chance to get it.

09 MR. PORTER: It is in my truck in the garage. Maybe I

10 can borrow someone else's.

11 MS. BELLOMO: If I we take a moment, Mr. Chairman, my

12 husband does have a copy.

13 CHAIRMAN CAFFREY: These are all exhibits, Ms.

14 Bellomo, that are already been submitted for the record?

15 MS. BELLOMO: Yes.

16 MR. FRINK: They have been identified.

17 CHAIRMAN CAFFREY: They have been identified, not yet

18 been -- that is why I said for rather than to. I didn't say

19 accepted, I said submitted. But thank you for keeping me

20 honest, Mr. Frink. You are doing a valiant job.

21 MS. BELLOMO: Thank you.

22 CHAIRMAN CAFFREY: You're very welcome. Please

23 proceed.

24 MS. BELLOMO: Good afternoon, neighbor.

25 MR. PORTER: Good afternoon, neighbor.

0736

01 Can you tell me what part of Wilson Creek are on U.S.

02 Forest Service lands?

03 MR. PORTER: Most of the stretch below Hawthorne

04 Highway is on Forest Service.

05 MS. BELLOMO: Is the mouth of Wilson Creek on Forest

06 Service property?

07 MR. PORTER: I would have to look at a map. There is

08 some state land in there, but I am not exactly sure where.

09 MS. BELLOMO: Is it the position of the Forest Service

10 -- let me restate that.

11 Is it your understanding that the Forest Service

12 asserts ownership of relicted land below Forest Service

13 property?

14 MR. PORTER: Yes.

15 MS. BELLOMO: What parts of Mill Creek are on U.S.

16 Forest Service land?

17 MR. PORTER: Again, I think it is about a three,

18 three-and-a-half-mile stretch, primarily below Highway 395.

19 MS. BELLOMO: Is the mouth of Mill Creek on Forest

20 Service land?

21 MR. PORTER: Again, I would have to look at a map to be

22 certain.

23 MS. BELLOMO: Do you have a map with you that would

24 help you make a determination?

25 MR. PORTER: Not with land ownership on it, no.

0737

01 MR. BIRMINGHAM: Excuse me, DWP did submit --

02 CHAIRMAN CAFFREY: I was about to ask is there an

03 exhibit that is either offered initially for the record or

04 in the record that would assist us here, that would assist

05 Ms. Bellomo?

06 MS. BELLOMO: Thank you.

07 If you look at Exhibit DWP-65, does that assist you in

08 answering my questions regarding the ownership of the land

09 at the mouth of Mill and Wilson Creeks?

10 MR. PORTER: Actually, I think it will, but I need to

11 look at it for a second.

12 MS. BELLOMO: Thank you.

13 MR. PORTER: Based on that map, it would appear that

14 for both Mill Creek and Wilson Creek the mouth of the creeks

15 is owned by DWP.

16 MS. BELLOMO: Are you aware that the cadastral surveyor

17 from the Bureau of Land Management is planning to do a new

18 survey in the near future starting with that part of the

19 basin?

20 MR. PORTER: No.

21 MS. BELLOMO: Would that be relevant to you -- would

22 you find that relevant to see the results of a new cadastral

23 survey before you conclusively decided that the Forest

24 Service has an ownership interest in the mouth of those

25 creeks?

0738

01 MR. PORTER: In the case of Wilson Creek, at least

02 drawn on this map, it is very close. So, yeah, I think any

03 one would be interested in the actual private land

04 boundaries.

05 MS. BELLOMO: If I understand your testimony, you are

06 not sure, as you sit here today, whether the Forest Service

07 has jurisdiction over the mouth of Wilson Creek or not?

08 MR. PORTER: That is not what I am trying to say.

09 What I am trying to say is, based on this map, it would

10 appear that it is DWP. But this map appears to be a

11 reproduction. Without looking at a map back home to verify

12 it, this could be drawn wrong. But according to this map,

13 it is DWP.

14 MS. BELLOMO: Assuming that I am correct, that the

15 cadastral surveyors from BLM are going to be doing new

16 surveys, would you want to wait until you saw the results of

17 their survey before you relied about the map that you have

18 at home?

19 MR. GIPSMAN: Objection. I think the question has been

20 asked and answered. I don't think we can really state

21 anything more than what is already been said here in

22 response to this question.

23 MS. BELLOMO: I am trying to clarify whether Mr. Porter

24 thinks that it is important for the Board to withhold or

25 whether the Forest Service thinks it is important to

0739

01 withhold judgment on who has jurisdiction over the mouth of

02 Wilson and Mill Creek until the cadastral survey is done.

03 CHAIRMAN CAFFREY: I am not sure I got that out of the

04 question.

05 MR. GIPSMAN: I am going to object as to relevance. We

06 would go by our existing land status maps. If a survey

07 showed that those are incorrect, then we would maybe have a

08 different position. But at present, we can't take any

09 position other than what is in our land status maps at the

10 present.

11 CHAIRMAN CAFFREY: I will sustain that objection.

12 MS. BELLOMO: Are you familiar with cadastral surveyor,

13 what that term refers to?

14 MR. PORTER: Somewhat yes.

15 MS. BELLOMO: Would you share my understanding that

16 they are the surveyors, the only surveyors, that are

17 authorized to do official surveys for the United States

18 Government of federal land?

19 MR. PORTER: I believe that is correct. They are our

20 only licensed surveyors.

21 MS. BELLOMO: You state in your testimony that the Inyo

22 National Forest and Mono Basin National Forest Scenic Area

23 support restoration of Mill Creek.

24 Do you recall that testimony?

25 MR. PORTER: Yes, I do.

0740

01 MS. BELLOMO: Who makes that decision in the Inyo

02 National Forest Scenic Area?

03 MR. PORTER: I think in the case of the Scenic Area

04 plan, where the direction is found, that was signed by the

05 Forest Supervisor.

06 MS. BELLOMO: That is Mr. Martin?

07 MR. PORTER: That is correct.

08 MS. BELLOMO: With regards to the Inyo National Forest

09 who made the decision to support the restoration of Mill

10 Creek?

11 MR. PORTER: I am sure if that is recommended by the

12 Forest Supervisor and, I believe, signed by the regional

13 forester for Land Management Plans, but I could be wrong on

14 that in terms of authority level.

15 MS. BELLOMO: You state in your statement in your

16 testimony, that Mill Creek restoration is a key step in

17 achieving a healthy Mono Basin ecosystem.

18 Do you recall that testimony?

19 MR. PORTER: Yes, I do.

20 MS. BELLOMO: What experts did you rely upon in

21 arriving at that conclusion?

22 MR. PORTER: That conclusion was arrived at when the

23 Comprehensive Management Plan for the Scenic Area was

24 prepared in about 1984, and shortly before that.

25 MS. BELLOMO: Were you part of that decision?

0741

01 MR. PORTER: No, not at that time.

02 MS. BELLOMO: Can you tell me what the opinion or what

03 the conclusions of the Forest Service was based upon in

04 terms of any scientific analysis or investigation?

05 MR. PORTER: Actually, no, I can't tell you what that

06 was based on. I do know that, in part, it was based upon

07 the National Academy of Sciences report, among other

08 documents. MS. BELLOMO: Specifically, what did that

09 report deal with?

10 MR. PORTER: It was -- that goes back before my time as

11 Scenic Area Manager, and actually before I had much

12 involvement with Scenic Area. But they were -- it was in

13 the legislation that created the Scenic Area, that the

14 National Academy of Sciences would do a study of Mono Lake

15 and Mono Basin.

16 MS. BELLOMO: Can you refer us to the document that you

17 relied upon in making the statement that Mill Creek

18 restoration is a key step in achieving a healthy Mono Basin

19 ecosystem?

20 MR. PORTER: That is not on document; that is opinion.

21 MS. BELLOMO: Whose opinion is that?

22 MR. PORTER: In that particular case, mine, among

23 others.

24 MS. BELLOMO: So, it is your opinion that Mill Creek

25 restoration is a key step in achieving a healthy ecosystem?

0742

01 MR. PORTER: That's correct.

02 MS. BELLOMO: What do you base that opinion on?

03 MR. PORTER: I base that opinion on having participated

04 in the FERC relicensing of Lundy Power Plant. And in that

05 process, comments, observations made by Fish and Game,

06 Forest Service specialists.

07 MS. BELLOMO: What was the recommendation of those

08 specialists with regard to the amount of water that should

09 be put back in Mill Creek?

10 MR. PORTER: Which? It depends on who are talking

11 about. Are you talking about Forest Service or Fish and

12 Game?

13 MS. BELLOMO: Well, let's start with Forest Service.

14 MR. PORTER: Forest Service recommended 7 cfs as a

15 minimum flow.

16 MS. BELLOMO: So, for Forest Service are you saying

17 that 7 cfs minimum flow was sufficient to restore Mill Creek

18 to satisfy the key step in achieving a healthy Mono Basin

19 ecosystem?

20 MR. PORTER: No, I am not saying that. The 7 cfs,

21 which is the number derived at for purposes of the FERC

22 relicensing, is primarily in response to maintaining

23 fishery and it doesn't necessarily reflect people's attitude

24 in terms of other environmental components of the creek.

25 MS. BELLOMO: So, specifically, what do the Forest

0743

01 Service scientists find that you are relying upon to say

02 that restoration is a key step in achieving something in

03 excess of 7 cfs is necessary?

04 MR. PORTER: I'm sorry, I don't think I understand your

05 question.

06 MS. BELLOMO: Do you believe that 7 cfs down Mill Creek

07 as a dedicated flow would be sufficient to satisfy your

08 opinion that restoration of Mill Creek is necessary for a

09 healthy Mono Basin ecosystem?

10 MR. PORTER: I don't think I am qualified to answer

11 that.

12 MS. BELLOMO: Do you have any opinion as to -- or let

13 me take that back. Does Forest Service have any opinion as

14 to the amount of flow that should be restored to Mill Creek?

15 MR. PORTER: Not at this time. We are waiting to see,

16 as I stated before, an analysis of it.

17 MS. BELLOMO: Has the Forest Service done any

18 independent study regarding Mill Creek?

19 MR. PORTER: No, we have not. We are planning to try

20 to do some next spring. We will attempt to put in some

21 transets and use the same methodology that Terry Russi of

22 BLM has used on Wilson Creek.

23 MS. BELLOMO: Has the Forest Service at this time done

24 any study of Wilson Creek?

25 MR. PORTER: No, we have not.

0744

01 MS. BELLOMO: You refer in your testimony to -- you

02 state that the Inyo National Forest and the Mono Basin

03 National Forest Scenic Area Comprehensive Management Plan

04 supports restoration of Mill Creek to restore critical

05 riparian and wetland habitat.

06 MR. PORTER: Correct.

07 MS. BELLOMO: Can you, please, describe the riparian

08 and wetlands habitat that expect to be restored in Mill

09 Creek?

10 MR. PORTER: No. Again, I don't think I am personally

11 qualified to answer that question.

12 MS. BELLOMO: What document were you relying on in

13 making that statement?

14 MR. PORTER: That statement is a product of

15 conversations with our forest hydrologist.

16 MS. BELLOMO: So, it is your forest hydrologist's

17 opinion that you relied upon in concluding that critical

18 riparian and wetlands habitat would be restored?

19 MR. PORTER: Correct.

20 MS. BELLOMO: Who is the forest hydrologist?

21 MR. PORTER: Lucy McKey [phon].

22 MS. BELLOMO: Did she indicate how long it would take

23 to restore this critical riparian and wetlands habitat?

24 MR. PORTER: No, she did not.

25 MS. BELLOMO: You didn't pursue that with her?

0745

01 MR. PORTER: No, I didn't.

02 MS. BELLOMO: In the Forest Service's opinion, would

03 drying up Wilson Creek be an acceptable environmental trade

04 for the rewatering of Mill Creek?

05 MR. PORTER: Again, at the risk of repeating myself,

06 what we want to see is an analysis done that addresses the

07 values, the relative values of Wilson Creek and the relative

08 values of Mill Creek as a first step in making those kinds

09 of decisions.

10 MS. BELLOMO: I guess I am having difficulty

11 understanding how you can support the restoration of Mill

12 Creek if you don't have any of this information that you say

13 needs to be obtained.

14 Are you supporting the restoration of Mill Creek, the

15 Forest Service?

16 MR. PORTER: Do we support it? Yes, we support the

17 restoration of Mill Creek, along with Lee Vining and Rush

18 Creeks. They were lumped together in terms of how they are

19 addressed in the Scenic Area Plan.

20 MS. BELLOMO: Does the Forest Service also support the

21 maintenance of Wilson Creek?

22 MR. PORTER: Yes. That is also in the plan.

23 MS. BELLOMO: Can you give me a reference to where that

24 is located?

25 MR. PORTER: I think I can find it for you.

0746

01 MS. BELLOMO: Could you tell me how much time I have

02 used?

03 CHAIRMAN CAFFREY: You used about 43 and a half

04 minutes.

05 MR. PORTER: Could I possibly look that up at break and

06 then either come back to it or show it to you?

07 MS. BELLOMO: Would that acceptable, Mr. Chairman?

08 CHAIRMAN CAFFREY: I don't know if anybody was

09 listening to that.

10 Mr. Frink, is that appropriate?

11 MR. FRINK: That would be appropriate. He could give

12 the reference.

13 CHAIRMAN CAFFREY: We are just talking about a

14 reference, is that all we are talking about?

15 MS. BELLOMO: Yes.

16 CHAIRMAN CAFFREY: Sure, I am sorry.

17 MS. BELLOMO: We could have a reference in the record

18 where the Scenic Area Plan supports that.

19 MR. PORTER: Thank you.

20 CHAIRMAN CAFFREY: Sure, we will allow that.

21 Mr. Dodge.

22 MR. DODGE: Mr. Chairman, I believe that the Dr.

23 Ridenhour is leaving right now. I believe he had staff's

24 permission to do that.

25 MR. JOHNS: Like he needs it.

0747

01 MR. DODGE: Mr. Roos-Collins and I actually turn out to

02 control February 18th. We have agreed that we would let Dr.

03 Ridenhour call himself as a witness on February 18th. I

04 wanted everyone to know that was going on happen.

05 CHAIRMAN CAFFREY: So, it --

06 MR. DODGE: It will be Dr. Reid, because we need to,

07 and Dr. Ridenhour --

08 CHAIRMAN CAFFREY: Dr. Ridenhour, in other words, is

09 not going to be here today if we get to him for direct, and

10 we will do on the 18th or did I --

11 DR. RIDENHOUR: I don't see any possibility the way it

12 is going.

13 CHAIRMAN CAFFREY: I would say that is fair assumption.

14 DR. RIDENHOUR: I have a six-hour drive and I think I

15 will save going.

16 CHAIRMAN CAFFREY: Yes. Without objection, we will

17 accommodate you in the spirit of what we talked about at the

18 beginning of this afternoon session, sir.

19 MR. DODGE: We will start with Dr. Reid, perhaps in

20 tandem with Mr. Schufford on waterfowl. Then we will go to

21 Dr. Ridenhour representing himself, and then whatever Cal

22 Trout witnesses we can get in.

23 CHAIRMAN CAFFREY: On the 18th you are talking about?

24 MR. DODGE: Yes, sir.

25 CHAIRMAN CAFFREY: Yes, sir, that is fine.

0748

01 We do not charge you for that time, Ms. Bellomo. We

02 will start the clock now. Just a moment, we won't start it

03 now.

04 Mr. Roos-Collins.

05 MR. ROOS-COLLINS: At the risk of saying the obvious,

06 does this mean then, that Cal Trout will not call its panel

07 today? I have a witness waiting two hours away to come if

08 there is any possibility he may be called.

09 CHAIRMAN CAFFREY: Well, we can just -- I can't imagine

10 we'd get you in. If we get down to you, we could have taken

11 you, we won't. Does that work?

12 MR. ROOS-COLLINS: Thank you, Mr. Chairman.

13 CHAIRMAN CAFFREY: Mr. Frink, you're understanding all

14 of that?

15 MR. FRINK: Yes.

16 CHAIRMAN CAFFREY: I think I do, and that is what is

17 scaring me. All right.

18 Now we will start the clock again.

19 MS. BELLOMO: Thank you.

20 CHAIRMAN CAFFREY: Please proceed.

21 MS. BELLOMO: Mr. Porter, looking at your testimony

22 attachment, I guess it is one of the attachments that is

23 called Enclosure 1, and it is the informal comments to the

24 draft waterfowl plan. I want to direct your attention to

25 that.

0749

01 Can you clarify for me what these were comments to?

02 What these comments were submitted on or were they submitted

03 to anyone?

04 MR. PORTER: Enclosure 1?

05 MS. BELLOMO: Yes.

06 MR. PORTER: They were submitted as comments to DWP

07 with a copy to the Board when the restoration and stream

08 plans were in draft stage.

09 MS. BELLOMO: You say at comment four, that Mill Creek,

10 referring to Mill Creek, should be stated that without the

11 effective rewatering of Mill Creek, during the entire year,

12 the waterfowl objectives of the plan cannot be met.

13 Just so I understand that comment, is the Forest

14 Service saying that it supports year-round rewatering of

15 Mill Creek as a priority or is that somebody's observation?

16 MR. PORTER: I'm turning to it now so I can reread it.

17 What number are you looking at?

18 MS. BELLOMO: Comment number four.

19 MR. PORTER: Specifically, would you reask the

20 question?

21 MS. BELLOMO: My question is: Does the Forest Service

22 support year-round rewatering as a priority or was that

23 simply a factual observation?

24 MR. PORTER: I think what we were trying to point out

25 was clarification to DWP that the time of year in which

0750

01 water was needed for waterfowl was fall. Early winter.

02 MS. BELLOMO: That wasn't a statement of position by

03 the Forest Service, that this fact did occur?

04 MR. PORTER: That was clarification to DWP that it was

05 unclear in their plan.

06 MS. BELLOMO: Does the Forest Service have an opinion

07 as to whether it would be possible to rewater Mill Creek

08 during the entire year and also maintain Wilson Creek

09 flowing down to the lake year-round?

10 MR. PORTER: At this point in time, we don't have an

11 opinion. Again, that is why we want an analysis done.

12 MS. BELLOMO: Again, on Enclosure 1, in your first

13 comment, you reference Page 11, Page 8. If you could read

14 that comment for a moment, I am going to ask you a

15 question.

16 MR. PORTER: Yes, go ahead.

17 MS. BELLOMO: You stated that existing cottonwood trees

18 along Cemetery Road at the county park are largely dependent

19 on irrigation water from Thompson Meadow. Are those trees

20 that are directly below Thompson Meadow that you are

21 referring to?

22 MR. PORTER: The trees I was referring to there are

23 the trees that are along Cemetery Road and the trees that

24 are -- cottonwood trees that are both slightly below the

25 Cemetery Road to the south and then also the scattered trees

0751

01 that are in the meadow to the north of Cemetery Road.

02 MS. BELLOMO: Where do these trees stand in

03 relationship to Thompson Meadow?

04 MR. PORTER: Some of them stand right by the entrance

05 to the county park, down to the entrance to Jeff Hanson's

06 property.

07 MS. BELLOMO: I would like to ask you to turn to

08 photographs that we have as exhibits of our testimony. I

09 will provide them to you because I know you don't have your

10 set with you.

11 MR. DODGE: If I may ask counsel, where are these

12 photos in my stack?

13 MS. BELLOMO: I am finding those. They are in the

14 envelope. They should be in the envelope, and I am finding

15 the right number.

16 Directing your attention, Mr. Porter, to Exhibit

17 RPMBM-6. For clarification, could I ask you for the benefit

18 of people that are in the hearing room, could I ask you to

19 point on the map behind you, which, I think, is R-DWP-65, I

20 believe, LADWP-65, the map behind you on the board, just

21 point out where Thompson Meadow is, and where this Cemetery

22 Road is that you are referring to.

23 MR. PORTER: Right in here.

24 MS. BELLOMO: The line that you are showing is Cemetery

25 Road?

0752

01 MR. PORTER: Yes, Cemetery Road is right there.

02 MS. BELLOMO: Where is Thompson Meadow area?

03 MR. PORTER: It is right across from the County Park,

04 along on this map where County Park is shown.

05 MS. BELLOMO: It is on the, not very good with

06 directions, generally north side of the road, would you say?

07 MR. PORTER: I think the bulk of the meadow is on the

08 north side, yeah.

09 MS. BELLOMO: Asking you to look at the photographs in

10 R-PMBP-6, I am just asking you to look at the first page of

11 photographs. There are two pages here.

12 I will represent to you these were taken on January

13 3rd, '97, which is indicated on the exhibit. Not trying to

14 represent that these are all dead as they hit the ground.

15 There was no foliage at the time.

16 Would you agree that now in January that the trees

17 would approximately look this way in terms of foliage? You

18 would expect to see them greener?

19 MR. DODGE: Objection. Is she calling for a question

20 about a healthy tree?

21 MS. BELLOMO: Do they look they way now?

22 CHAIRMAN CAFFREY: I didn't hear the objection, I'm

23 sorry.

24 MR. DODGE: I couldn't understand the question. It was

25 ambiguous to me.

0753

01 CHAIRMAN CAFFREY: Thank you.

02 MR. PORTER: Can you restate your question?

03 MS. BELLOMO: I have not introduced these into

04 evidence. I don't want to mislead anyone in to thinking

05 that we are representing that these are dead trees, all of

06 these are dead trees, simply because there is no foliage on

07 them. So, I am asking you: Have you been down to the

08 County Park lately and seen this is more or less the way

09 that they look because it is January?

10 MR. PORTER: I would say so, yeah. Although, there are

11 some that are dead.

12 MS. BELLOMO: Looking at the top photograph on the

13 first page of Exhibit R-PMBP-6, do you recognize the

14 location of that line of trees as being at the east end of

15 Thompson Meadow, parallel to -- running parallel to the

16 Cemetery Road?

17 MR. PORTER: That I couldn't say for certain, that that

18 is exactly where it is, but that is what it looks like to

19 me, yes.

20 MS. BELLOMO: The bottom photograph unfortunately isn't

21 an excellent photograph, but I am hoping, since you know the

22 area so well, you will be able to recognize it.

23 Do you recognize that this photograph is looking down

24 towards the lake?

25 MR. PORTER: Let me look at that one for a second.

0754

01 MS. BELLOMO: Directing your attention -- first of all,

02 directing your attention to the mountains behind and --

03 MR. PORTER: I think it is looking slightly southwest,

04 back towards 395, down towards the property below where Mono

05 ends is what it appears to me.

06 MS. BELLOMO: You see in the middle of the photograph a

07 line where you have sagebrush in the foreground, then you

08 see a line where there is a line of vegetation, sort of rust

09 colored?

10 MR. PORTER: I think I see what you are talking about.

11 MS. BELLOMO: What I am trying to establish is that the

12 road along which you are saying the trees are found, that

13 are largely dependent on water from Thompson Meadow

14 irrigation.

15 MR. PORTER: I believe so if that is Cemetery Road,

16 that I am looking at.

17 MS. BELLOMO: Would you have any reason to think that

18 that is not?

19 MR. PORTER: No. To be honest, I really can't see the

20 road very clearly in that photo.

21 MS. BELLOMO: I will be interested if you can suggest

22 any other road or location that could be.

23 MR. PORTER: No, I don't think I could.

24 MS. BELLOMO: How recently have you been down along

25 Cemetery Road in that area, along County Park?

0755

01 MR. PORTER: Probably, within the month.

02 MS. BELLOMO. You have noticed, I assume, there is an

03 area which is depicted in the left portion of this

04 photograph where the county had to remove a number of trees

05 along the County Road because they were dead?

06 MR. PORTER: Yes, I did notice that.

07 MS. BELLOMO: You noticed, I assume, that closer to

08 the County Park the trees weren't all dead at this time and

09 had not been removed yet, correct?

10 MR. PORTER: Yeah. I would say that is correct.

11 MS. BELLOMO: Is it correct, the County Park and

12 Thompson Meadow are within the boundaries of National Scenic

13 Area?

14 MR. PORTER: That is correct.

15 MS. BELLOMO: And am I correct, also, that DWP, Los

16 Angeles Department of Water and Power, is exempted in some

17 way from the full range of regulations on their property

18 within the Scenic Area?

19 MR. PORTER: What DWP is -- we have what are called

20 private land guidelines that were developed for private

21 property within the Scenic Area. DWP, along with other

22 state and federal agencies, are exempt from those

23 guidelines, correct.

24 MS. BELLOMO: If a private property owner who owns

25 property in the Scenic Area proposed, for instance, to cut

0756

01 down a orchard on their property, would they have to get

02 Scenic Area permission for that?

03 MR. PORTER: Restate that, please.

04 MS. BELLOMO: Let's say, hypothetically, a private

05 property owner, who had an old orchard of trees on their

06 property, if they wanted to cut that down and they are in

07 the Scenic Area, would they have to get a permit to do that?

08 MR. PORTER: Not a permit, no permit.

09 MS. BELLOMO: Some sort of permission?

10 MR. PORTER: We have never had that kind of issue come

11 up such as cutting down a orchard. Generally, what we deal

12 with is somebody wanting to make a structural improvement on

13 the property. As far as something such as you suggest,

14 cutting down the trees, I really don't know the answer to

15 that. I would have to get an opinion from the Office of

16 General Counsel.

17 MS. BELLOMO: You reference that most of the activities

18 related to land use regulation on private lands have to do

19 with construction, I think you said. Is that correct,

20 something along those lines.

21 MR. PORTER: Yes, construction or expansion.

22 MS. BELLOMO: Is the concern there that the Scenic Area

23 has -- is the concern there with protecting the view shed in

24 the Scenic Area?

25 MR. PORTER: That is certainly part of it, yes.

0757

01 MS. BELLOMO: Am I correct in assuming that the Forest

02 Service mentions that the cottonwood trees along Cemetery

03 Road at the County Park are largely dependent on irrigation

04 water from Thompson because of the concern of the view shed

05 in Scenic Area if those trees were to die if they weren't

06 irrigated?

07 MR. PORTER: No, that is not exactly right. The reason

08 that comment is in there, again, these were comments as

09 draft plan, and it was simply a way of telling DWP that the

10 trees associated with the Cemetery Road are -- could be, in

11 part, dependent on the water that it is used to irrigate

12 Thompson Meadow and that dewatering it may not be a popular

13 decision. That is all.

14 MS. BELLOMO: Do you recall the meeting that we had

15 with Dennis Martin, I believe that is his name, and did you

16 say he is the Forest Supervisor?

17 MR. PORTER: Yes.

18 MS. BELLOMO: Do you recall the meeting we had with

19 Dennis Martin at the Knowles' [phon] house where you and I

20 were present and several other community members?

21 MR. PORTER: Yes, I do.

22 MS. BELLOMO: Was I correct in understanding Mr. Martin

23 saying that the Scenic Area does have jurisdiction or

24 authority to comment on activities of land uses DWP engages

25 in on their land, to the extent it impacts adjacent

0758

01 property, including view shed in the Scenic Area?

02 MR. PORTER: I think that is basically correct. As I

03 recall, what Dennis said was that whether it be any

04 landowner. And as an example, take the original proposal

05 for Conway Ranch; we have the ability to comment on that

06 kind of project through the county planning process, the

07 same as any other entity or citizen does. I believe that

08 was his point MR. BIRMINGHAM: Excuse me, Mr. Caffrey.

09 I wonder if I could ask for explanation of the relevance of

10 the Scenic Area Plan to the adequacy of DWP's proposed

11 Waterfowl Habitat Restoration Plan.

12 CHAIRMAN CAFFREY: Could you explain this line of

13 questioning, Ms. Bellomo?

14 MS. BELLOMO: Yes, Mr. Caffrey.

15 The Department of Water and Power's proposal is to stop

16 irrigating Thompson Meadow, which we have reason to believe

17 is going to cause the vegetation area, including all the

18 trees, to ultimately die. And I am trying to determine what

19 the intent of the Forest Service comments are in their

20 position. They observe that the trees are dependent on

21 irrigation from Thompson Meadow. Now I am inquiring as to

22 whether the Scenic Area actually has jurisdiction to, for

23 instance, prevent the Department of Water and Power from

24 stopping irrigation because it is going to destroy the view

25 sheds in the Scenic Area.

0759

01 MR. PORTER: Maybe I can answer that.

02 CHAIRMAN CAFFREY: Go ahead with the question.

03 MR. PORTER: No, we don't have the authority to stop

04 them. We also don't have the authority to stop, say, Conway

05 Ranch. We can comment, but we do not have final

06 jurisdiction.

07 MS. BELLOMO: Your comment would be made in accordance

08 with Scenic Area Plan guidelines; is that what would govern

09 your comments?

10 MR. PORTER: Correct.

11 MS. BELLOMO: Has the Scenic Area decided yet whether

12 to oppose, ultimately oppose DWP's proposal to stop

13 irrigating Thompson Meadow, to oppose that plan on the basis

14 it would damage the view shed in the Scenic Area?

15 MR. PORTER: No. That has not been assessed by anyone,

16 to my knowledge. And I am assuming that as a consequence of

17 returning water to Mill Creek that that is part -- will be

18 part of the CEQA analysis when that application comes before

19 the Board.

20 MS. BELLOMO: Before the Water Board?

21 MR. PORTER: Yes.

22 MS. BELLOMO: Now, turning to the subject of DeChambeau

23 Ranch, which you testified earlier today is located on the

24 Forest Service property.

25 MR. PORTER: Correct.

0760

01 MS. BELLOMO: This is now managed by the Forest Service

02 as well as owned by them, correct?

03 MR. PORTER: Yes.

04 MS. BELLOMO: When was that property acquired by the

05 Forest Service?

06 MR. PORTER: I think in about 1988, sticks in my mind.

07 MS. BELLOMO: At the time Forest Service acquired

08 DeChambeau Ranch properties, was water still flowing in

09 both of the DeChambeau ditches from Wilson Creek onto the

10 ranch property?

11 MR. PORTER: I think I can stay that prior to Forest

12 Service acquiring the land, it was in ownership by Mammoth

13 Mountain for a period of about 18 months, in which for the

14 first season it was not irrigated. The season after that,

15 it was irrigated.

16 MS. BELLOMO: By the Forest Service?

17 MR. PORTER: It was -- we, the Forest Service, did the

18 irrigation, but it was still owned, at that point in time,

19 by Mammoth Mountain. The land exchange was not final.

20 MS. BELLOMO: The irrigation water was coming out of

21 Wilson Creek, correct?

22 MR. PORTER: Correct.

23 MS. BELLOMO. The Forest Service has a Mill Creek water

24 right, correct?

25 MR. PORTER: Correct.

0761

01 MS. BELLOMO: You would get that water out of Wilson

02 Creek?

03 MR. PORTER: Correct.

04 MS. BELLOMO: You would get it to the ranch via the two

05 DeChambeau ditches?

06 MR. PORTER: There are two ditches that have been

07 historically used, yes.

08 MS. BELLOMO: At the time that Forest Service first

09 took over management of DeChambeau Ranch and was irrigating

10 with Wilson Creek water, some of that water that was being

11 used for irrigation was also being put into DeChambeau

12 Ponds; is that correct?

13 MR. PORTER: I believe that is correct, yes.

14 MS. BELLOMO: Would you agree that some of it that was

15 spread on the meadow right above the pond for irrigation

16 purposes then went into the ponds?

17 MR. PORTER: Yes. Some of it, even if only a

18 subsurface flow, would get to the pond.

19 MS. BELLOMO: Would you also agree that overflow water

20 to the DeChambeau Ponds at that time used to flow down,

21 whether it was overflow water, that used to flow down to the

22 County Ponds that lie between the DeChambeau Ponds and Mono

23 Lake?

24 MR. PORTER: Could you repeat that question, please?

25 MS. BELLOMO: I am asking whether you would agree that

0762

01 overflow water from DeChambeau Ponds made its way down to

02 the County Ponds?

03 MR. PORTER: Yes. You could do it that way or, I

04 believe, there is a ditch in which you could bypass

05 DeChambeau Pond and take it straight to County Pond.

06 MS. BELLOMO: That was done also with water from Wilson

07 Creek that was Forest Service or DeChambeau property water

08 rights, correct?

09 MR. PORTER: That is correct.

10 MS. BELLOMO: At some point in time, the Forest Service

11 stopped using Wilson Creek water onto DeChambeau property

12 altogether, correct?

13 MR. PORTER: We haven't used water on DeChambeau Ranch

14 from Wilson Creek, I believe, since '92, '92 or '93. I

15 can't really remember what year it was.

16 MS. BELLOMO: That included not putting any water in

17 the DeChambeau Ponds from Wilson Creek or in the County

18 Ponds, correct?

19 MR. PORTER: Well, not any water. There still is the

20 hot water?

21 MS. BELLOMO: I meant Wilson Creek water.

22 MR. PORTER: Wilson Creek water, that is correct.

23 MS. BELLOMO: Am I correct that the Forest Service

24 stopped -- at the point of time when water stopped being

25 transported onto DeChambeau property from the DeChambeau

0763

01 ditches, that point in time, that water was not being used

02 because the irrigation ditches had, excuse the local

03 expression, blown out and they would not carry water?

04 MR. PORTER: I wouldn't exactly characterize it as the

05 ditches had blown out. I think it is more a matter of the

06 ditches were in very bad shape. The only ditch that we

07 could even consider using was the lower ditch at the County

08 Road. The condition of that ditch was such that, to put

09 water in it, wasted a lot of water, but it did carry water.

10 MS. BELLOMO: Are you saying, under those

11 circumstances, the Forest Service decided just not to use

12 any of their Wilson Creek water rights and put it in the

13 ditch?

14 MR. PORTER: Yes, we decided not to do that.

15 MS. BELLOMO: What were you using as an alternative for

16 irrigation at that point?

17 MR. PORTER: Just the hot water. That was just the

18 ponds.

19 MS. BELLOMO: You weren't irrigating the meadows at

20 that point?

21 MR. PORTER: No.

22 MS. BELLOMO: You stopped irrigating the trees around

23 the ranch house and buildings?

24 MR. PORTER: Correct.

25 MS. BELLOMO: At that point, the Forest Service stopped

0764

01 using Wilson Creek water on DeChambeau property even at the

02 time of the year when there was enough flow to exercise your

03 water right, correct?

04 MR. PORTER: That's correct.

05 MS. BELLOMO: The sole reason for that was -- are you

06 saying the only reason for that was because the ditch was,

07 although to hold water, was not in very good condition?

08 MR. PORTER: That was the main reason. I think the

09 other part of our reason was that strong opposition had been

10 expressed, when we did the DeChambeau Pond EA, to us using

11 Mill Creek for purposes of maintaining those ponds.

12 MS. BELLOMO: Whose strong opposition are you referring

13 to?

14 MR. PORTER: At the time, one was, I believe, Emilie

15 Strauss, although she didn't want it back necessarily at

16 that time, anyway. She didn't necessarily want it back in

17 Mill Creek. She wanted it left in Wilson Creek.

18 MS. BELLOMO: Do you know if, at that time, Emilie

19 Strauss was employed by the Mono Lake Committee?

20 MR. PORTER: No. She was not at that point in time.

21 She was working for Caltrans at that point in time.

22 MS. BELLOMO: Was that after she worked for the Mono

23 Lake Committee?

24 MR. PORTER: Yes, it was after.

25 MS. BELLOMO: She is a biologist, is that correct?

0765

01 MR. PORTER: I don't think she is a biologist.

02 Somebody may know more than me, but as I recall, I think she

03 was an ornithologist. I think her specialty, anyway, is

04 birds.

05 MS. BELLOMO: Were you ever told by anyone that the

06 Forest Service might be sued if it used its Mill Creek water

07 right at a time when, in fact, you didn't have a right to

08 use it?

09 MR. PORTER: I don't know if "sued" was the word

10 used. Threatened, yes.

11 MS. BELLOMO: Who threatened?

12 MR. PORTER: Basically, one was Scott Stine. Scott

13 understood what the legal ramifications of our water right

14 was, and said, "Use it appropriately."

15 MS. BELLOMO: "Or else you are in trouble," was that

16 the implication?

17 MR. PORTER: I wouldn't say the implication was, or

18 else, by any means. Scott was making a point.

19 MS. BELLOMO: Did that factor into the Forest Service's

20 decision to stop using its Mill Creek water right?

21 MR. PORTER: We certainly heeded had some of his

22 advice, yes.

23 MS. BELLOMO: Am I am correct that you don't have a

24 gauging station to determine if you are using exactly the

25 right amount?

0766

01 MR. PORTER: That is correct.

02 MS. BELLOMO: So, did that contribute to your concern

03 that you might be caught using, when you weren't supposed to

04 be using?

05 MR. PORTER: I wouldn't say it contributed to our

06 concern. The bottom line was if our water right really says

07 that we take 12.6 cfs after 40 cfs come through the

08 tailrace, and we have no way of measuring of whether we are

09 taking 12.6 cfs, then we cannot guarantee that we are living

10 by the letter of the law.

11 And certainly, that had an affect on our decision to

12 hold off on our using that water.

13 MS. BELLOMO: Assume hypothetically that the Forest

14 Service was given an opportunity, a legal opportunity, to

15 acquire a right to year-round flows off Wilson Creek, Mill

16 Creek water off Wilson Creek, the Forest Service wouldn't

17 object to using this surface water to restore the DeChambeau

18 Ponds and irrigate the meadows and the trees, would it?

19 MR. PORTER: Would you repeat that one more time?

20 MS. BELLOMO: Assuming that you were given, somehow had

21 a legal right, either given, bestowed or dedicated to you so

22 that you legally had a right to use Mill Creek water year

23 round, taking it through your DeChambeau ditches or new

24 ditches, the Forest Service wouldn't object to using this

25 surface water to restore the DeChambeau Ponds and irrigate

0767

01 the meadows and trees of DeChambeau Ranch, would it?

02 MR. DODGE: Objection. Calls for speculation.

03 MR. GIPSMAN: Objection calls for speculation.

04 I am going to question the relevancy of this line of

05 questioning. I don't understand anymore what this has to do

06 with Forest Service comments on the Restoration Waterfowl

07 Plan.

08 CHAIRMAN CAFFREY: I will sustain the objection and ask

09 you to explain the relevance of the line of questioning.

10 BOARD MEMBER DEL PIERO: It is a little hard to

11 follow.

12 MS. BELLOMO: We have filed testimony proposing that

13 the Forest Service utilize surface water for DeChambeau

14 Ponds instead of the line of drilling scenario. And I don't

15 know that I am going to have any other opportunity to find

16 out if the Forest Service is willing to use surface water

17 for the DeChambeau Pond rather than drill.

18 BOARD MEMBER BROWN: Maybe just ask.

19 CHAIRMAN CAFFREY: Mr. Brown said maybe just ask, which

20 I think is what you are trying to do.

21 MS. BELLOMO: What I am trying to do. Maybe I didn't

22 ask --

23 CHAIRMAN CAFFREY: Mr. Frink, are you going to say

24 something?

25 MR. FRINK: Yes, Mr. Chairman. I think we have to

0768

01 limit ourselves in this hearing to the proposed restoration

02 plans that the City of Los Angeles has submitted, and if we

03 get into potential plans of the Forest Service might do for

04 some other reason, I think we are beyond the scope of the

05 notice.

06 CHAIRMAN CAFFREY: Aren't we getting into a level of --

07 again, this is hard to define. We are getting beyond, far

08 beyond the conceptual in terms of specific details of what

09 might be part of another meeting at a later date or even, at

10 least, an environmental process, or am I missing something?

11 MR. FRINK: I think the sort of issues that Ms. Bellomo

12 is addressing are the sort of environmental issues that will

13 have to be addressed in weighing the benefits between Mill

14 and Wilson Creek if the project were to proceed on Mill

15 Creek, yes. But as you indicated in your opening statement,

16 the Board cannot decide on the City's water right

17 application for Mill Creek in this proceeding.

18 CHAIRMAN CAFFREY: I hate to stifle you, Ms. Bellomo,

19 but according to instructions I gave at the beginning, if

20 this proposal proceeds, there will be environmental

21 documentation process. We talked earlier in the hearing,

22 there was testimony and discussion about what the order of

23 events that would be and what the Board would be required to

24 do and not do in terms of all that. And so there will be

25 ample opportunity to go into this kind of detail at that

0769

01 time, I would think so.

02 MS. BELLOMO: I certainly will abide by your ruling.

03 If I could just ask for clarification because now I am

04 genuinely confused.

05 The People for Mono Basin Preservation have put forward

06 our proposal for how to spread the water around to satisfy

07 different interests, environmental interests. I know the

08 State Lands Commission has done the same. The Mono Lake

09 Committee has another variation or proposal.

10 To what extent can we conduct cross-examination about

11 those proposals of other witnesses? I am just confused.

12 CHAIRMAN CAFFREY: Well, you haven't given direct,

13 yet.

14 Mr. Frink, you want to answer the legal question here?

15 MR. FRINK: I will attempt to. The focus of the

16 hearing is still on the proposal that the City of Los

17 Angeles has submitted. To the extent that other witnesses

18 or parties identify what they believe is a preferable method

19 of accomplishing similar objectives, that may give the Board

20 reason to give the City of Los Angeles some other direction

21 regarding its Waterfowl Habitat Restoration Plan.

22 It is difficult. I mean, we have indicated that in order

23 to go ahead with this, there would be other proceedings

24 before the Board.

25 I think the opening comments about addressing this more

0770

01 at a conceptual level rather than all of the details of

02 every possible alternative proposal is the best way to go.

03 Because I think we will be here forever in this process.

04 Whereas, those alternatives would more properly have to be

05 addressed in the environmental documentation process under

06 CEQA and/or NEPA.

07 MR. BELLOMO: I think I can proceed with that.

08 CHAIRMAN CAFFREY: I think the short version would be

09 -- thank you, Mr. Frink, appreciate that -- would be to keep

10 it as general and conceptual as you can and use your best

11 judgment as to what details mean. And as we go along, if we

12 have a problem, we will let you know.

13 MS. BELLOMO: Okay.

14 CHAIRMAN CAFFREY: Please try to keep it more general

15 than you have been.

16 MS. BELLOMO: Thank you for the clarification.

17 I will try to tie this in, tying this into the DWP

18 plan, as I understand it.

19 When the scientists talked about restoration of

20 DeChambeau Pond, correct me if you recall differently, my

21 recollection is that their recommendation involved drilling

22 to obtain water for DeChambeau Pond; is that correct, and

23 for county ponds?

24 MR. PORTER: Well, that is somewhat correct. There

25 were three things that were looked at in DeChambeau Pond in

0771

01 the environmental analysis. One was using the existing

02 water rights from Mill Creek. Second was constructing a

03 pipeline, either from Conway Ranch or from Cemetery Road to

04 DeChambeau. And the third was drilling wells.

05 In terms of whose decision was that, that was -- the

06 decision to drill wells was the decision of the then

07 District Ranger.

08 MS. BELLOMO: Did the waterfowl scientists endorse the

09 restoration of DeChambeau Pond through drilling?

10 MR. PORTER: What do you mean by the "waterfowl

11 scientists"?

12 MS. BELLOMO: The three scientists who prepared the

13 report that is in the Department of Water and Power

14 Restoration Plan.

15 MR. PORTER: No. Those three scientists were

16 consultants hired by DWP for purposes of making

17 recommendations on waterfowl habitat and, other than the

18 fact that Chris Reise works for Ducks Unlimited, it was

19 Ducks Unlimited who we were working with, not the waterfowl

20 scientists.

21 And by the time the waterfowl scientists were on board,

22 the decisions regarding DeChambeau Ranch had already been

23 made.

24 MS. BELLOMO: As I understand what you said, the

25 scientists looked at three scenarios for rewatering, once

0772

01 they were restoring DeChambeau Pond?

02 MR. PORTER: No. We looked at --

03 MS. BELLOMO: You looked at three. Is it your

04 understanding that the scientists only considered the

05 drilling alternative?

06 MR. DODGE: Objection. Unintelligible. No foundation.

07 These scientists as a group did not look at the DeChambeau

08 Ranch Project. It was basically done by the time they

09 started.

10 MR. PORTER: I think we need -- let me see if I can

11 clarify where I think you are a little bit confused.

12 The scientists, the waterfowl scientists, did look at

13 the County Pond. But what has been referred to as Phase I

14 in these hearings was started in about '92, and all of the

15 planning for it had been completed by the time the

16 waterfowl scientists went to work for DWP.

17 MS. BELLOMO: So, the waterfowl scientists

18 recommendation pertaining to restoring County Ponds --

19 MR. PORTER: That's correct.

20 MS. BELLOMO: Was the recommendation to attempt

21 drilling to get water for County Pond?

22 MR. PORTER: Drilling a well is a part of their cost

23 estimate, yes.

24 MS. BELLOMO: My question is: Would the Forest Service

25 have any objection to using surface water from Wilson Creek

0773

01 instead of drilling, in order to restore the County Ponds,

02 if you had water rights that enabled you to do so?

03 MR. PORTER: It depends. There are several things.

04 Again, that is a question that can be better answered after

05 analysis is down of Wilson Creek and Mill Creek. But it

06 will also come down to such things as cost. Is it cheaper

07 to supply the water with groundwater pumping than it is to

08 put a pipeline in as a delivery system?

09 MS. BELLOMO: What about through ditches?

10 MR. PORTER: Or through ditches. And then annual

11 maintenance of the ditches. So, there is quite a bit in

12 terms of information needed before the Forest Service would

13 be willing to make a decision.

14 MS. BELLOMO: The United States Forest Service applied

15 for a Congressional award related to DeChambeau Restoration

16 Project, correct?

17 MR. PORTER: We were nominated. That is a little

18 different than applied for.

19 MS. BELLOMO: Did you receive the award?

20 MR. PORTER: Yes, we did.

21 MS. BELLOMO: Now I would like to direct your attention

22 to the photographs that are in R-PMBP-4. This is three

23 pages of photographs, totalling six photos.

24 MS. SCOONOVER: Mr. Caffrey, if I might interrupt.

25 Excuse me, Ms. Bellomo. I would ask whether or not the

0774

01 People for Mono Basin Preservation have an additional color

02 photocopy. We were given black and white prints and we

03 can't discern much or read the labeling underneath the

04 photos. If there are additional copies, we would appreciate

05 it. We didn't realize that they were going to be used

06 today, or we would have talked outside the presence of the

07 Board.

08 CHAIRMAN CAFFREY: I have a color copy up here which

09 I'd be glad to offer.

10 You have one there, Jim? Thank you.

11 MR. DODGE: We served them on time, so we got a color

12 copy.

13 MS. BELLOMO: Random who got them.

14 CHAIRMAN CAFFREY: All right. Please proceed.

15 Everybody have access to a color copy that feels they need

16 one? We will pass it around, if not.

17 Please proceed.

18 MS. BELLOMO: Do you recognize these photographs as

19 being taken at DeChambeau Pond?

20 MR. PORTER: Yes, I do.

21 MS. BELLOMO: Would you agree that these photographs

22 accurately represent approximately the way this location

23 looks today? These are taken January 3rd.

24 MR. PORTER: That is pretty much. The only thing that

25 might be different, they might have more snow on them today

0775

01 than they did January 3rd.

02 MS. BELLOMO: Not to be rude, because we were happy you

03 got the Congressional award out there, would you agree that

04 as it turned out, this restoration project, in fact, failed?

05 (Discussion held off record.)

06 MR. PORTER: Would rephrase that question?

07 On second thought, don't rephrase that question.

08 Actually, I will explain. Number one, the award was

09 not for habitat. The award was for effective partnership in

10 planning process, which I think it was.

11 And then, what was the second part of the question?

12 MS. BELLOMO: That answered my question. That is, I

13 was asking if the project was a failure, but that is fine.

14 Would you agree at this point -- let me back up for a

15 minute.

16 Before you started Phase I, how many ponds were there

17 at DeChambeau Ponds?

18 MR. PORTER: As I recall, when I came here in 1980, I

19 believe there were a total of four ponds.

20 MS. BELLOMO: Did the Phase I add another pond or not?

21 I don't know; I am just asking.

22 MR. PORTER: Yes, it did. It added a fifth pond that

23 is intended to be seasonal in nature.

24 MS. BELLOMO: Would you agree that, at this time, the

25 pond that is shown on the first page of the photographs in

0776

01 PMBP-4, on the bottom photograph, is the only pond that

02 currently has water in it?

03 MR. PORTER: No. The hot water has maintained what we

04 call ponds one and two, the two ponds on the north end of

05 the ranch. And I think what you are looking at, although I

06 can't be positive, I think what you are looking at in the

07 bottom photo on the first page --

08 Is that the one you are referring to.

09 MS. BELLOMO: Yes.

10 MR. PORTER: I think that's pond three, the edge of

11 pond three. Because it is a pond that has been reworked.

12 We have not reworked one and two. And what you are seeing

13 in the way of water, that is rain water from the January

14 storm.

15 MS. BELLOMO: Thank you for refreshing my recollection.

16 I remember that now. Now, the Forest Service -- I think

17 you referenced earlier in your testimony that you drilled a

18 well. You have a well with a pump, right, that was planned

19 to be used for watering these ponds?

20 MR. PORTER: That's correct.

21 MS. BELLOMO: What is the reason that that well was

22 abandoned and pumping was stopped?

23 MR. PORTER: The reason the pumping was stopped is that

24 after -- basically, the original part of the work entailed

25 putting in new weirs and doing repair work on the dikes

0777

01 inbetween the ponds, and also drilling a fresh water well to

02 be pumped by a propane generator for purposes of supplying

03 water to the pond. After that work had been completed, when

04 water was pumped back into the ponds, the ponds no longer

05 held water.

06 That took Ducks Unlimited by surprise, in that the

07 ponds had held water prior to being dried up, both during

08 the drought and then, in the first season or so, when the

09 land was in the ownership of Mammoth Mountain.

10 MS. BELLOMO: How long did you actually try to pump?

11 For what period of time did you try to pump enough water to

12 get the pond to hold water?

13 MR. PORTER: Well, pond three, which is about an acre

14 and a quarter in size, we pumped it for 30 straight days,

15 pumped water into it at the rate of about 450 -- somewhere

16 between 400 and 500 gallons a minute for 30 straight days.

17 MS. BELLOMO: How much did that cost?

18 MR. PORTER: Too much. Spent approximately $10,000 in

19 propane.

20 MS. BELLOMO: Maybe the local rumor is incorrect, but

21 my understanding is at that point you ran out of money, and

22 you said we can't keep pumping this way.

23 Is that correct?

24 MR. PORTER: We certainly -- I don't know if it's

25 accurate to say we ran out of money. We did not see the

0778

01 point in continuing to pump. We knew the ponds were not

02 sealing. The purpose of pumping the 30 days was simply to

03 see if you got the ponds wet, would whatever clay was in the

04 soil expand and seal itself.

05 MS. BELLOMO: Would you agree that during this

06 1996-1997 fall and winter season, that DeChambeau Ponds did

07 not have functional waterfowl habitat?

08 MR. PORTER: You are talking then this fall and this

09 winter?

10 MS. BELLOMO: Right.

11 MR. PORTER: No. Ponds one and two, other than having

12 people and equipment out there working, which does,

13 obviously, disrupt waterfowl, ponds one and two have had

14 water in them full time.

15 MS. BELLOMO: You agree that they are considerably

16 smaller than they were prior to the period when they went

17 dry, wouldn't you?

18 MR. PORTER: No. Because ponds one and two never did

19 go dry, because they've always had the hot water artesian.

20 They've never been dry.

21 MS. BELLOMO: Would you agree that they are smaller

22 than they were when irrigation water was entering them?

23 MR. PORTER: If you have a continuous supply of

24 unlimited water, basically, you can make them as big as what

25 you want.

0779

01 MS. BELLOMO: So, the answer is yes?

02 MR. PORTER: So, the answer is, yes, if you run 25 cfs

03 directly into the ponds all summer long, you can keep them

04 full.

05 MS. BELLOMO: Are you saying that is what was done in

06 the past?

07 MR. PORTER: Sometimes, yeah.

08 MS. BELLOMO: By the Forest Service?

09 MR. PORTER: No.

10 MS. BELLOMO: Are you basing that on hearsay or --

11 MR. PORTER: I remember seeing it in the early 1980s

12 when I first came to the base.

13 MS. BELLOMO: Who measures the water?

14 MR. PORTER: I don't think anybody did back then.

15 MS. BELLOMO: Who estimated 25 cfs?

16 MR. PORTER: Just a guess.

17 MS. BELLOMO: You mentioned that because of the people

18 and a lot of heavy equipment being out at the area, that

19 that has limited the value of the ponds for waterfowl

20 habitat during the last fall and winter, correct?

21 MR. PORTER: I am saying that I suspect that for the

22 amount of time that work was being conducted that affected,

23 to some degree, waterfowl.

24 MS. BELLOMO: Have you been out there at any time in

25 the fall of '96 or winter of '97 and seen any significant

0780

01 numbers of waterfowl habitat at Dechambeau Ponds?

02 MR. PORTER: On ponds one and two, my observation, I

03 have seen less ducks on ponds one and two this winter than

04 last winter, but it is also my observation that I have less

05 ducks in the basin this year than last year.

06 MS. BELLOMO: What are the most ducks you have seen out

07 in ponds one and two this last fall and winter?

08 MR. PORTER: This fall and winter?

09 MS. BELLOMO: Yes.

10 MR. PORTER: At any one time, probably no more than

11 five.

12 MS. BELLOMO: Has the Forest Service started its test,

13 drilling for the test wells for use in Dechambeau ponds?

14 MR. PORTER: No, we have not attempted to drill a

15 second well yet.

16 MS. BELLOMO: What affect does the Forest Service think

17 that the pumping, groundwater pumping, for the county ponds

18 would have on the lake fringing wetlands northeast of the

19 County Ponds?

20 MR. PORTER: We don't have the information necessary to

21 answer that question. That would be part of an

22 environmental analysis that would need to be done prior to

23 drilling a second well.

24 MS. BELLOMO: So, I take it that the Forest Service

25 hasn't made any commitment at this point that they are going

0781

01 to do test well drilling until they have done some

02 environmental assessment?

03 MR. PORTER: I think it is more accurate to say -- I

04 think that is probably accurate.

05 MS. BELLOMO: Do you have any schedule set up for

06 studying that issue so you can make a determination as to

07 whether it is prudent to pursue the drilling approach?

08 MR. PORTER: Is your question, do we have a timetable?

09 MS. BELLOMO: Yes.

10 MR. PORTER: I would say we do. What it is, more or

11 less, step by step; the first thing we want to see done and

12 see work, is for the job of sealing the bottom of the ponds

13 with bentonite to be complete. At that point in time, we

14 then want to assess how well the ponds are sealed and what

15 the water demand for the project really is. Based on the

16 water demand, that will then help us decide what makes the

17 most sense with providing water to the project.

18 MS. BELLOMO: If you decide to drill wells, who is

19 going to pay for it?

20 MR. PORTER: If we were to drill a well right now, it

21 would be either Forest Service money, or we would have to

22 get some sort of grant money.

23 MS. BELLOMO: Moving to my questions here; I see I am

24 on the yellow light.

25 CHAIRMAN CAFFREY: You still have one minute.

0782

01 MS. BELLOMO: Thank you.

02 Looking back at the photograph, R-PMBP-4, look at the

03 top photograph, do you recognize this as a photograph of the

04 bags of bentonite that were delivered to the Dechambeau Pond?

05 MR. PORTER: Yes, I do.

06 MS. BELLOMO: Would you agree that, as of last Sunday,

07 the bags were still out there, and now they were covered

08 with blue tarp to keep the water off them, the rain?

09 MR. PORTER: Yes.

10 MS. BELLOMO: You indicated that there only five more

11 days necessary to complete the --

12 MR. PORTER: Yes.

13 MS. BELLOMO: -- betonite restoration of the ponds?

14 MR. PORTER: Yes.

15 MS. BELLOMO: When did they start this project?

16 MR. PORTER: I would have to look to be certain, but

17 sometime in December, I believe.

18 MS. BELLOMO: No further questions.

19 CHAIRMAN CAFFREY: Thank you very much, Ms. Bellomo.

20 It is just about 3:00; let's take a ten-minute break

21 and come back and go for a little while longer.

22 (Break taken.)

23 CHAIRMAN CAFFREY: Lets resume.

24 MR. GIPSMAN: Before we continue with cross --

25 CHAIRMAN: Yes, sir.

0783

01 MR. GIPSMAN: -- I have a little housekeeping matter.

02 I would like to have Mr. Porter's statement identified as

03 U.S. Forest Service 2.

04 CHAIRMAN CAFFREY: All right. Got that staff?

05 MR. JOHNS: Yes.

06 CHAIRMAN CAFFREY: Thank you, staff.

07 MR. GIPSMAN: Mr. Porter has found the reference page

08 number to the Scenic Area Plan in response to a question.

09 CHAIRMAN CAFFREY: Did you hear that, Ms. Bellomo, and

10 others?

11 MS. BELLOMO: Yes.

12 CHAIRMAN CAFFREY: And the reference is?

13 MR. PORTER: The reference is Page 49, the Mono Basin

14 National Forest Scenic Area Comprehensive Management Plan,

15 Page 49, under Scenic Area Standards and Guidelines, Subpart

16 B.

17 Would the Chairman like me to read that?

18 CHAIRMAN CAFFREY: I think we were just looking for the

19 reference.

20 Thank you.

21 Did everybody hear it?

22 Let me just say, in keeping with what the initial dates

23 we added to the schedule and what I said yesterday about not

24 going in the night sessions, we will target today's

25 adjournment for about a quarter to five. Trying to get as

0784

01 much done as we can by then.

02 All right. We had finished Ms. Bellomo's

03 cross-examination.

04 Is Mr. Haselton here?

05 Okay. Mr. Ridenhour has left.

06 Mr. Roos-Collins. There you are, sir.

07 Good afternoon and welcome.

08 ---oOo---

09 CROSS-EXAMINATION

10 BY CALIFORNIA TROUT

11 BY MR. ROOS-COLLINS

12 MR. ROOS-COLLINS: Afternoon, Mr. Chairman. Good

13 afternoon, Mr. Porter.

14 MR. PORTER: Good afternoon to you, sir.

15 MR. ROOS-COLLINS: I have one issue to address with

16 you, and that is Paragraph 5 in your statement, which is now

17 identified as an exhibit, Forest Service Exhibit 2.

18 In that paragraph you recommend that Edison should be

19 consulted to determine if there is any viable way for them

20 to contribute to finding solutions to some of the logistical

21 problems identified by Los Angeles in delivering water to

22 Rush, Lee Vining and Mill Creeks.

23 Has the Forest Service consulted with Edison with

24 regard to its operation of its hydropower project on Rush

25 Creek for this specific purpose?

0785

01 MR. PORTER: On Rush Creek for the specific purpose --

02 MR. ROOS-COLLINS: If there was a viable way for Edison

03 to contribute to finding solutions to some of Los Angeles'

04 problems?

05 MR. PORTER: I think what we have done, we have talked

06 informally with Southern California Edison. But as far as

07 talking to them formally in a meeting setting, specifically

08 regarding flows in Rush Creek, the answer is no.

09 MR. ROOS-COLLINS: You mentioned earlier that FERC is

10 undertaking a proceeding for issuance of a new license for

11 Edison's Rush Creek project.

12 MR. PORTER: That's correct.

13 MR. ROOS-COLLINS: In connection with that proceeding,

14 has the Forest Service submitted Section 40 conditions to

15 the Federal Energy Regulatory Commission?

16 MR. PORTER: Yes, we have.

17 MR. ROOS-COLLINS: Do those conditions address

18 coordination between Edison and Los Angeles, again, for the

19 specific purpose identified in Paragraph 5 of your

20 testimony?

21 MR. PORTER: Not to best of my knowledge, no.

22 MR. ROOS-COLLINS: Are the conditions draft or final?

23 MR. PORTER: My understanding of where it is at in the

24 process, is that they would be final if they were submitted

25 and then the FERC license was appealed by SCE. And where it

0786

01 is at in the status now, is that the appeal will -- the hope

02 is that the appeal will be resolved by no later than the

03 Fall of '97.

04 MR. ROOS-COLLINS: The same question for Edison's

05 project on Lee Vining Creek?

06 MR. PORTER: Same answer.

07 MR. ROOS-COLLINS: You have informally consulted; you

08 have issued Section 40 conditions?

09 MR. PORTER: Yes, we have.

10 MR. ROOS-COLLINS: You do not believe that those

11 Section 40 conditions address coordination between Edison

12 and Los Angeles for the specific purpose identified in

13 Paragraph five?

14 MR. PORTER: That's correct.

15 MR. ROOS-COLLINS: Mr. Gipsman, is the Forest Service

16 willing to provide the Section 40 conditions to which Mr.

17 Porter just referred to the Board and parties?

18 MR. GIPSMAN: Yes.

19 MR. ROOS-COLLINS: Thank you. No further questions.

20 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.

21 Department of Fish and Game, Ms. Murray.

22 ---oOo---

23 //

24 //

25 //

0787

01 CROSS EXAMINATION

02 BY DEPARTMENT OF FISH AND GAME

03 BY MS. MURRAY

04 MS. MURRAY: Good afternoon. The Department has only

05 a few questions. Ms. Bellomo was very thorough. I just

06 want to confirm what you said about the Dechambeau Pond

07 Phase I.

08 Is it correct that a NEPA document and environmental

09 assessment was done?

10 MR. PORTER: That's correct.

11 MS. MURRAY: So, if you were given NEPA documents,

12 would the U.S. Forest Service analyze and make decisions

13 for each particular project rather than waiting for one

14 large environmental analysis to be done, one comprehensive

15 that had every project in it, or would you be willing to

16 make your decision on a case-by-case, project-by-project

17 basis?

18 MS. BIRMINGHAM: Objection. Calls for speculation.

19 MR. GIPSMAN: Also, it is a pretty broad question. If

20 she could be more specific with the question, I think it

21 would help in getting an intelligible answer.

22 CHAIRMAN CAFFREY: Why don't you try it again, Ms.

23 Murray.

24 MS. MURRAY: There was one project, DeChambeau Ponds,

25 Phase I.

0788

01 MR. PORTER: Correct.

02 MS. MURRAY: An environmental analysis was done and a

03 decision was made?

04 MR. PORTER: Correct.

05 MS. MURRAY: If you were given another project, County

06 Pond, just an environmental analysis for just that project,

07 would you make a decision for just that project?

08 MR. GIPSMAN: Again, I will renew the objection on the

09 basis of speculation this time. Also, I think the law

10 provides, under NEPA, that any project would have to look at

11 cumulative effect. So, she maybe asking the witness for a

12 legal conclusion.

13 CHAIRMAN CAFFREY: Certainly, a question they don't

14 feel they are able to answer.

15 MR. MURRAY: I will move on.

16 Does the Forest Service have lands with potential pond

17 sites other than that identified?

18 MR. PORTER: Pond or scrapes?

19 MS. MURRAY: Including scrapes.

20 MR. PORTER: I think it is different. I feel more

21 comfortable saying that in terms of scrapes, yes, there is

22 Forest Service land out toward Simis Springs, that there is

23 the potential for scrapes.

24 As far as ponds, I think what we are really talking

25 about is the issue of having to drill more wells to provide

0789

01 water for ponds. I don't know of any other areas in which

02 water is naturally occurring that you would call it a pond.

03 I am not saying there isn't any; I am saying I don't know of

04 any.

05 MS. MURRAY: Do you recall the cost estimate by the

06 three scientists on the Black Point Scrapes Project?

07 MR. PORTER: On the scrape itself? No, not without

08 looking.

09 MS. MURRAY: Did you have three scientists --

10 MR. PORTER: Not in front of me.

11 MS. MURRAY: Can I show it to you?

12 MR. PORTER: Yes.

13 MS. MURRAY: This is Page 90 of the three scientists'

14 report, Appendix I.

15 So, is it correct to say at Page 90 of Appendix I of

16 the plan, the three scientists' report, that the estimate

17 and cost for the scrapes is $25,000?

18 MR. PORTER: That is correct.

19 MS. MURRAY: Would you say that the cost of scrapes,

20 the $25,000, is significantly less than the County Ponds'

21 estimate at $638,437?

22 MR. PORTER: According to my math, it is

23 substantially, yes.

24 MS. MURRAY: It is substantially less and there are

25 other places that are on U.S. Forest Service land that

0790

01 scrapes could be done?

02 MR. PORTER: Yes. Again, keep in mind that, as a

03 proposal, scrapes can certainly be looked at, but, again,

04 you would be looking at doing an environmental assessment

05 for those scrapes.

06 MS. MURRAY: With that one scrape.

07 In your testimony, you discussed large woody debris and

08 indicate that LADWP appears to propose obtaining large woody

09 debris from the floodplain and Cain Ranch.

10 In your opinion, could the large woody debris now in

11 the floodplains serve as important habitat for wildlife?

12 MR. PORTER: Well, what I have been told by our

13 specialists, yes, it could.

14 MS. MURRAY: Thank you. That is all.

15 CHAIRMAN CAFFREY: Thank you, Ms. Murray.

16 See Mary Scoonover.

17 ---oOo---

18 CROSS-EXAMINATION

19 BY STATE LANDS COMMISSION AND

20 DEPARTMENT OF PARKS AND RECREATION

21 BY MS. SCOONOVER

22 MS. SCOONOVER: I should have just a few questions for

23 you, Mr. Porter.

24 You were questioned quite extensively before about the

25 FERC relicensing process.

0791

01 Do you recall those questions?

02 MR. PORTER: Yes, I do.

03 MS. SCOONOVER: Did the FERC relicensing process

04 address waterfowl habitat?

05 MR. PORTER: Not in my opinion.

06 MS. SCOONOVER: Were the Forest Service recommendations

07 on Mill Creek Road or releases from Mill Creek based on

08 waterfowl habitat restoration?

09 MR. PORTER: Not in my opinion.

10 MS. SCOONOVER: You were asked a number of questions

11 regarding Item Number 4 of your testimony, in which you

12 state that the Inyo National Forest support the restoration

13 of Mill Creek.

14 Do you recall that testimony?

15 MR. PORTER: Yes, I do.

16 MS. SCOONOVER: Do you agree with the statement found

17 on Page 93 of the Mono Basin Waterfowl Habitat Restoration

18 Plan, part of the scientists' recommendation, middle

19 paragraph:

20 In overall importance to waterfowl, we

21 consider the restoration of riparian and

22 deltaic wetlands habitat on Mill Creek only

23 second to raising the level of Mono Lake to

24 6392 feet. (Reading.)

25 Do you agree with that?

0792

01 MR. BIRMINGHAM: I am going to object on the grounds it

02 calls for the opinion of this witness who is not qualified.

03 MS. SCOONOVER: I believe this witness has expressed an

04 opinion as to the importance of Mill Creek to the overall

05 restoration efforts. Ms. Bellomo questioned him at some

06 length about the basis of that.

07 CHAIRMAN CAFFREY: Are you qualified to answer the

08 question, sir?

09 MS. SCOONOVER: I will withdraw it. It's late. We

10 will go a different route.

11 Mr. Porter, is the United States Forest Service's

12 support of Mill Creek restoration efforts, as described in

13 the waterfowl scientists' plan, based on the waterfowl

14 scientists' recommendations, at least in part?

15 MR. PORTER: Would you repeat that?

16 MS. SCOONOVER: Is the U.S. Forest Service's support of

17 rewatering Mill Creek based, in part, on the recommendations

18 of the three waterfowl scientists, Fritz, Drewien, and

19 Radcliff?

20 MR. PORTER: I think it is probably accurate to say, in

21 part, that support for Mill Creek restoration is also based

22 on the direction that is provided for in the Scenic Area

23 Plan.

24 MS. SCOONOVER: Thank you. That is all.

25 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

0793

01 Bruce Dodge, Mr. Dodge.

02 ---oOO---

03 CROSS-EXAMINATION

04 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE

05 BY MR. DODGE

06 MR. DODGE: Well, that was awfully fast. I am not sure

07 I can organize my thoughts here, but I will try.

08 Mr. Porter, I thought I heard you say, at least I wrote

09 it down, that FERC was close to issuing a license for Lundy.

10 Did you testify to that?

11 MR. PORTER: Yes, I did.

12 MR. DODGE: On what do you base that?

13 MR. PORTER: I base that on talking with our district

14 land officer.

15 MR. DODGE: When do you expect such a license to be

16 issued?

17 MR. PORTER: Either for Rush Creek or for Mill Creek,

18 one of the two, the talk is sometime in the fall of '97.

19 MR. DODGE: My question is specifically to Lundy.

20 MR. PORTER: Lundy is behind Rush Creek, and I am not

21 sure of the date for Lundy. Because I believe it is Rush

22 Creek coming out, around the fall of '97.

23 MR. DODGE: That isn't what I understand. I have heard

24 that the license for Lundy is not expected in the near

25 future.

0794

01 MR. PORTER: Yes. That is new information to me. I

02 haven't heard that much.

03 MR. DODGE: Can you tell us -- as I understand it, one

04 of the issues is the amount of constant flow that SCE has to

05 release from the Lundy Reservoir. Is that your

06 understanding, also?

07 MR. PORTER: If you are referring to minimum flows,

08 yes.

09 MR. DODGE: What positions have the various parties

10 taken?

11 MR. PORTER: My recollection of the exact numbers are,

12 I believe, SCE recommended 4 cfs. Forest Service

13 recommended 7 cfs, and, I believe, Fish and Game recommended

14 11 cfs. That may have been 12.

15 MR. DODGE: Thank you.

16 Now, you mentioned that there were five working days

17 left, in your judgment, in order to finish the work, as I

18 understood it, to seal the DeChambeau Pond, correct?

19 MR. PORTER: That's correct.

20 MR. DODGE: Was the work, in effect, stopped by

21 inclement weather.

22 MR. PORTER: Yes. It was combination of two things,

23 inclement weather and the type of weather. Basically, the

24 ponds were mostly sealed and, when we got that unusual

25 rainstorm the first week of January, we found out that it

0795

01 would appear the ponds will hold water. And. Therefore,

02 they're too muddy to get heavy equipment back into them.

03 MR. DODGE: In effect, the success of the project has

04 caused it to stop?

05 MR. PORTER: That's kind of the way we look at it,

06 yes.

07 MR. DODGE: I was going to ask you whether you have an

08 interim judgment as to how the sealing work is going?

09 MR. PORTER: I sure wouldn't want -- at this point, I

10 sure wouldn't want to speculate too much. But I think I

11 would be willing to say, it's going to be much better than

12 it was before.

13 MR. DODGE: Just one more area of questions.

14 Now, you've testified that you support rewatering Mill

15 Creek, correct?

16 MR. PORTER: Yes.

17 MR. DODGE: You, the Forest Service. And in part that

18 support is based on the scientists' proposal, correct?

19 MR. PORTER: Correct, in part.

20 MR. DODGE: You have told us, if my notes are right,

21 that the Forest Service has not used Mill Creek water on

22 DeChambeau Ranch since approximately 1992, correct?

23 MR. PORTER: Correct, approximately.

24 MR. DODGE: One of the reasons for that, as I

25 understood it, was that the ditch no longer worked?

0796

01 MR. PORTER: Not that it would not work. You could get

02 water over to the ranch through the ditch, but the ditch

03 leaked a lot of water. So, in order to get water to the

04 ranch, you might have to put as much as 25 cfs in the ditch,

05 and then I think when we did it in '92, the person that did

06 it estimated that it took about two and a half weeks for the

07 ditch to seal up well enough for water to actually,

08 physically get to the ranch.

09 MR. DODGE: You don't have a right to 25 cfs, do you?

10 MR. PORTER: No, we don't.

11 MR. DODGE: I believe you also testified, one problem

12 with taking water is you can't measure what you're taking?

13 MR. PORTER: That's correct.

14 MR. DODGE: Your water right is 12.6 cfs after the

15 first 43 cfs; am I right?

16 MR. PORTER: I believe it was 40 cfs.

17 MR. DODGE: On order of magnitude, it is one of those

18 numbers?

19 MR. PORTER: Correct.

20 MR. DODGE: Given that you support rewatering Mill

21 Creek and given that you support the scientists'

22 recommendation and you are not, for the past few years,

23 using the Dechambeau water at the ranch, in your judgment,

24 would the Forest Service consider dedicating your water

25 rights to return it to Mill Creek?

0797

01 MR. PORTER: I think two things. One, again, I would

02 say it is the same question with the same answer, that we

03 want to see the analysis done on Wilson Creek and Mill

04 Creek, and based on that analysis, we then would be willing

05 to look at alternate uses of our water.

06 MR. DODGE: Who, ultimately, at Forest Service would

07 make that decision?

08 MR. PORTER: I believe it would be the Forest

09 Supervisor of the Inyo National Forest.

10 MR. DODGE: Who is that individual today?

11 MR. PORTER: Dennis Martin.

12 MR. DODGE: Do you think we can get him on the stand

13 here?

14 MR. PORTER: You did before.

15 MR. DODGE: No further questions.

16 Thank you, sir.

17 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

18 Mr. Gipsman, do you have redirect?

19 MR. GIPSMAN: No, I don't.

20 Does the Board staff have any questions?

21 CHAIRMAN CAFFREY: I did it again. I am sorry. Just

22 happens when it gets late in the afternoon.

23 Forgive me Mr. Canaday.

24 MR. DODGE: I am glad we are finally getting someone to

25 accept my definition of what is late.

0798

01 CHAIRMAN CAFFREY: You broke my chops.

02 ---oOo---

03 CROSS EXAMINATION

04 BY BOARD STAFF

05 MR. CANADAY: Mr. Porter, just for clarification, the

06 County proposed a project to be called County Ponds or Black

07 Point Scrapes are, in fact, on federal land, U.S. Forest

08 Service land?

09 MR. PORTER: Yes, they are.

10 MR. CANADAY: Is the U.S. Forest Service the last

11 diverter on Wilson Creek, legal diverter?

12 MR. PORTER: I believe so.

13 MR. CANADAY: Can you show on LADWP-65 approximately

14 where on Wilson Creek that the Forest Service would divert?

15 MR. PORTER: Be approximately right here, where Wilson

16 Creek crosses the Cemetery Road.

17 MR. CANADAY: Where Cemetery Road bisects Wilson Creek

18 on the map, that would be the point of diversion into --

19 that would be called Lower DeChambeau Ditch?

20 MR. PORTER: That's correct.

21 MR. CANADAY: Thank you.

22 Based on your experience as Scenic Area Manager, if, in

23 fact, the Forest Service did decide to dedicate their water

24 back to Mill Creek, that would require a NEPA analysis by

25 the Forest Service, would it not?

0799

01 MR. PORTER: Yes, it would.

02 MR. CANADAY: The cfs, the recommendation through the

03 FERC relicensing of the Lundy project, in the 40 comments of

04 the Forest Service, your recommendation was for a 7 cfs

05 bypass to support the fishery. Is that correct?

06 MR. PORTER: That's correct, to the best of my

07 recollection.

08 MR. CANADAY: That fishery -- was the 7 cfs fisheries'

09 minimum release to support fisheries from Lundy Dam all the

10 way to the mouth of Mill Creek, or someplace shorter than

11 that?

12 MR. PORTER: Someplace shorter than that.

13 MR. CANADAY: Where Highway 395 crosses?

14 MR. PORTER: That is what I recollect, is that the

15 fishery would be from 395 back to the dam.

16 MR. CANADAY: Thank you.

17 Let me make sure I understood.

18 In the Scenic Area Plan, on Page 49, Subpart B, it does

19 refer to the maintenance. The plan supports the concept of

20 maintenance of Wilson Creek; is that correct?

21 MR. PORTER: It doesn't use the word "maintenance."

22 Would you like me to read it?

23 MR. CANADAY: Yes, please. Is it very long?

24 MR. PORTER: Not at all. It says:

25 Negotiating with public utility entities and

0800

01 other effective parties to return water to

02 portions of the following dewatered streams:

03 Rush Creek, Lee Vining Creek, Mill Creek, and

04 Wilson Creek. (Reading.)

05 MR. CANADAY: So, if the Forest Service, as the last

06 diverter on Wilson Creek, were to choose to dedicate their

07 water to, in a sense, comply with one of their objectives of

08 the Scenic Plan, they would have to also get a variance from

09 Scenic Plan, as well, because of its impact on Wilson Creek?

10 MR. GIPSMAN: That calls for a legal conclusion.

11 MR. CANADAY: I will withdraw the question.

12 That is all I have. Thank you.

13 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

14 Anything else from staff?

15 MR. FRINK: No.

16 ---oOo---

17 CROSS-EXAMINATION

18 BY MEMBERS OF THE BOARD

19 CHAIRMAN CAFFREY: Mr. Brown has a question from the

20 Board.

21 BOARD MEMBER BROWN: Mr. Porter, you suggest that a

22 watershed analysis needs to completed. Is that for the Mill

23 Creek watershed area?

24 MR. PORTER: I think for both Mill Creek and if the

25 intent is to take water that has historically has been in

0801

01 Wilson Creek, then both Wilson Creek and Mill Creek need to

02 be analyzed at the same time in order to know what the

03 trade-offs are for doing that.

04 BOARD MEMBER BROWN: What about DeChambeau service area

05 and its tributaries?

06 MR. PORTER: DeChambeau Creek?

07 BOARD MEMBER BROWN: Yes.

08 MR. PORTER: It could be and should be analyzed. At

09 this point in time, what we know about DeChambeau is that it

10 provides some water to Thompson Meadow.

11 BOARD MEMBER BROWN: What is the watershed, say, of

12 Mill Creek? Can you give the magnitude?

13 MR. PORTER: I heard the numbers, but I can't remember.

14 BOARD MEMBER BROWN: Is it a thousand acres or 10,000

15 or a hundred?

16 MR. PORTER: I'd just be guessing. I really can't

17 come close.

18 BOARD MEMBER BROWN: That is all right for now.

19 MR. PORTER: I don't have a guess, is what I want to

20 say.

21 BOARD MEMBER BROWN: In the watershed as for Mill

22 Creek, how many of that would you estimate is federal land?

23 MR. PORTER: Probably about a total of -- I know there

24 is about two and a half, three miles below 395. So I would

25 guess at maybe four miles of Forest Service. A lot of

0802

01 upstream is SCE.

02 BOARD MEMBER BROWN: The riparian lands that are

03 federal to the creeks?

04 MR. PORTER: Yes.

05 BOARD MEMBER BROWN: What kind of watershed management

06 practices would you be considering in the watershed analysis

07 BMPs, what kind?

08 MR. PORTER: What kind of issues would we be

09 addressing?

10 BOARD MEMBER BROWN: Right.

11 MR. PORTER: I think one of the issues that, I think,

12 everyone is in agreement with that we can address, is more

13 efficient transport of water, more efficient use of

14 water. And I think that is a big issue in which there seems

15 to be a lot of agreement, that that is one that we can

16 address and make the water go further.

17 I think the others are all of the environmental

18 considerations that go along with the creek, similar to

19 those types of things that have been addressed on Rush Creek

20 and Lee Vining Creek in terms of the stream scientists'

21 recommendations. So, I would see all of those type of

22 things being addressed.

23 BOARD MEMBER BROWN: Has the Forest Service or, to your

24 knowledge, the Bureau of Land Management used the Soil

25 Conservation Service for any farm plans for those areas?

0803

01 MR. PORTER: For any farm plans?

02 BOARD MEMBER BROWN: Farm or conservation plans.

03 MR. PORTER: I can't speak for BLM. In the case of the

04 Forest Service, I think we have. I think our rain

05 specialists have used the Soil Conservation Service.

06 BOARD MEMBER BROWN: Are any of those federal lands, to

07 your knowledge, are they leased out for grazing purposes?

08 MR. PORTER: Are any of our federal lands?

09 BOARD MEMBER BROWN: Yes.

10 MR. PORTER: Specifically where?

11 BOARD MEMBER BROWN: To the watershed of Mill Creek or

12 Wilson Creek or DeChambeau.

13 MR. PORTER: No. I believe -- in the case of Wilson

14 Creek and Mill Creek, there is not grazing in either of

15 those watersheds on Forest Service land. The grazing

16 allotments that are part of what the Scenic Area Plans was

17 -- had the opportunity arisen to reduce grazing in the

18 Scenic Area, we would not reissue grazing permits. And in

19 the Wilson Creek and Mill Creek, that allotment became

20 vacated, and it has not been reissued.

21 BOARD MEMBER BROWN: When was it vacated?

22 MR. PORTER: In of the case of Wilson Creek, the

23 DeChambeau Ranch itself was base property as part of the

24 grazing allotment. That permit was eliminated when we

25 acquired Dechambeau Ranch back in about 1988. The other

0804

01 allotment, which was called Mono Settlement, was eliminated

02 probably now, about four years ago, that affected Mill

03 Creek.

04 BOARD MEMBER BROWN: Are there any leases on your land

05 now, adjacent to these creeks or in the watershed area?

06 MR. PORTER: There is grazing on private land within

07 those watershed areas.

08 BOARD MEMBER BROWN: I mean just yours, the federal

09 land, if you know of, the Bureau of Land Management or your

10 land, Forest Service land.

11 MR. PORTER: All I can say is that all the area

12 encompassed within -- all of the Forest Service land

13 encompassed within what would be a boundary made by Cemetery

14 Road and then back to what would be the north and west, is

15 not grazed other than at least one permittee that trails

16 sheep from Conway Ranch over to south of Cain Ranch and

17 trails them through the Scenic Area, in that general

18 vicinity.

19 BOARD MEMBER BROWN: Does it cross the creek, the

20 trails?

21 MR. PORTER: No, I don't believe he does. I believe

22 that he takes what is called the Old Highway, so he crosses

23 the creek over a bridge.

24 BOARD MEMBER BROWN: Thank you, Mr. Porter.

25 MR. DODGE: Mr. Chairman we have a witness who can

0805

01 respond to Mr. Brown's question on the area of Mill Creek

02 watershed, if you would like that now.

03 CHAIRMAN CAFFREY: You have a witness who will be

04 giving direct later on, is that what you saying?

05 MR. DODGE: Yes.

06 CHAIRMAN CAFFREY: Is that burning, Mr. Brown? Shall

07 we go to it?

08 BOARD MEMBER BROWN: I can wait.

09 You may remind me of that at the time, Mr. Dodge.

10 MR. DODGE: That is the problem; I will have forgotten.

12 CHAIRMAN CAFFREY: I am sure Mr. Brown will remind you.

13 He's got quite a memory.

14 That completes the cross. Do you have redirect, Mr.

15 Gipsman?

16 MR. GIPSMAN: No, no redirect.

17 CHAIRMAN CAFFREY: Then do you wish to offer your

18 exhibits?

19 MR. GIPSMAN: Yes. I wish to offer Exhibits 1 and 2.

20 CHAIRMAN CAFFREY: Exhibits 1 and 2, we've got those in

21 hand, staff. Without objection, if there is none, they will

22 be accepted into the record.

23 MR. GIPSMAN: Thank you very much.

24 CHAIRMAN CAFFREY: Thank you, gentlemen, for your

25 appearing today.

0806

01 It is ten to four. We can keep going a little while

02 longer.

03 Bureau of Land Management. Is it Mr. Russi or Russi?

04 MR. RUSSI: Russi.

05 CHAIRMAN CAFFREY: Thank you, sir. Good afternoon,

06 welcome. Thank you for your patience.

07 These mikes aren't the greatest. You may have to pull

08 them a little close.

09 ---oOo---

10 DIRECT EXAMINATION

11 BY THE BUREAU OF LAND MANAGEMENT

12 BY MR. TERRY RUSSI

13 MR. RUSSI: By way of introduction, Mr. Chairman and

14 Members of the Board, my name is Terry Russi. I am the

15 Supervisory Wildlife Biologist for BLM, the Bishop Resource

16 Area, Bishop, California. I have been in that position in

17 the Resource Area for close to 15 years. As far as my

18 educational background, I have a Bachelor of Science and

19 Master of Science Degrees in biology.

20 My primary responsibilities for BLM in the area are

21 extensive. And without going into them in any detail, I

22 will simply say that I have responsibility for all aspects

23 of land management practices that relate to wildlife

24 habitat, which encompasses streams, uplands, and other types

25 of aquatic and nonaquatic environments. I have also had to

0807

01 become, over my tenure with the BLM which now extends to

02 some 18 plus years, knowledgeable in the areas of soils and

03 hydrology.

04 In citing that, I would I like to lead into just a

05 quick summary of the testimony.

06 CHAIRMAN CAFFREY: Please do, sir.

07 MR. RUSSI: Then, I will make myself available to

08 everyone out here.

09 The reason I am here today representing the BLM stems

10 from our responsibilities under the Federal Land Policy

11 Management Act of 1976. And for the record, that is Public

12 Law 94579. Within that act, the BLM is clearly directed to

13 conduct the management of the public lands in a multiple use

14 and sustained yield practice.

15 Inherent within those guidelines, BLM is also directed

16 at each resource area office, throughout all locations of

17 the United States to develop land management plans which are

18 based upon those principles of multiple use and sustained

19 yield.

20 The Bishop Resource Management Plan of 1993 Record of

21 Decision of that years provides land use decisions which are

22 directly linked to the policy statements found within FLPMA,

23 FLPMA is the acronym for the Federal Land Policy Management

24 Act.

25 As part of our responsibilities under the Resource

0808

01 Management Plan, we are clearly directed to carry out

02 practices which ensure the long-term sustainability, if you

03 will, of public land resources along stream and riparian

04 environments in the resource area.

05 Wilson Creek is 1 of 74 perennial streams, if you will,

06 that occurs within the resource area of the Eastern Sierra

07 portion that we are responsible for. And by the way, the

08 location of our resource area is extending between, for the

09 general audience, from Topaz Lake on the Nevada border at

10 Coleville, California, south to Owens Dry Lake in the Owens

11 Valley.

12 In 1978, my agency, although I was not at the Bishop

13 location at that time, my agency had the responsibility of

14 carrying out extensive inventories on all stream systems in

15 the resource area. Over a period of approximately three

16 years, various fisheries' biologists conducted extensive

17 inventories on fish habitat conditions within all of those

18 streams. Wilson Creek was one of those streams.

19 And before I go any further, I should state that thanks

20 to the exhibit up here -- I don't see another number.

21 MR. JOHNS: 65.

22 MR. RUSSI: You will note, based on the coloration of

23 the map, the three separate segments of Wilson Creek that

24 occur on BLM land. It just so happens that the 1978

25 inventory that was done on Wilson Creek for fish habitat

0809

01 conditions, was not on any of those three segments. It was

02 on a segment of stream that is now within the U.S. Forest

03 Service ownership.

04 That information was very specific as to fish habitat

05 condition, relating to stream channel condition, riparian

06 vegetation and the erosional condition, classes of the

07 banks, and adjacent floodplains at that specific site of

08 inventory.

09 As a result of learning of our necessary involvement in

10 this proceeding concerning waterfowl habitat restoration as

11 it concerns Wilson Creek, myself and two other specialists

12 in my office proceeded to conduct as detailed an inventory

13 of the resources, along with three individual segments of

14 Wilson Creek, as we possibly could, given what we were then

15 led to believe were time constraints concerning testimony

16 before this Board.

17 To date, we have completed and a very extensive

18 botanical survey of each of the three segments. I have also

19 measured stream flow discharge measurements, if you will, at

20 various locations along those three segments of stream. We

21 have also conducted a standard stream cross-sectional

22 investigation at various locations within the three segments

23 to numerically identify the condition of the stream as to

24 its stream bank integrity, channel condition, and riparian

25 vegetation.

0810

01 The evidence that we have collected to date has been

02 analyzed in varying degrees. The botanical survey has

03 recently been completed by our staff botanist, and the

04 preliminary, and I do not want to emphasize preliminary,

05 report has been completed. We are ongoing with our efforts

06 at analyzing additional information that was recently

07 provided to us by Southern California Edison as to the

08 annual hydrograph from the Lundy Powerhouse. We have some

09 additional requests to make of the Los Angeles Department of

10 Water and Power concerning information they might have on

11 the diversion of water at various times into the Lower

12 Conway and Upper Conway Ditches and any other pertinent

13 information that we can possibly find that might help us

14 understand that system as best we can.

15 I think I would like to also indicate to everyone

16 present today that, within the scope of testimony that we

17 have already provided, and this is for the information of

18 everyone, to assist them as best we can with other things,

19 other efforts that we have already completed, or that are

20 ongoing concerning the public land along Wilson Creek, I

21 would like for the audience to know that the botanical

22 survey was very specific in that we used a geographical

23 positioning system device to actually delineate the

24 boundaries of riparian vegetation in all segments of the

25 stream, and that we have also identified individual

0811

01 community types within the three segments as to their

02 compositional status and to their area or, if you will, the

03 acreage extent of each of those communities.

04 The BLM Bishop Resource Area, by luck, in 1988 was one

05 of the first resource areas in BLM to receive a complete

06 geographic information computer system by which to inventory

07 all land and document all data then available, which we have

08 added to extensively since that time. Our capability under

09 GIS is, at this time point, quite extensive, and our

10 information base is very comprehensive for the Mono

11 Basin. I also need to remind the Board and others here that

12 the BLM used to be the land manager for what is now the

13 Mono Basin Scenic Area. That land was transferred to the

14 Forest Service on or about 1987, as I recall. I could be

15 missing it by a year there or so.

16 Our historic inventory data of varying kinds includes

17 the Mono Basin Scenic area, including Mill Creek and other

18 areas that have been discussed in testimony before this

19 Board. We are quite willing to offer that data to anybody

20 that wishes it.

21 I have also noticed, and within the scope of testimony

22 that we have provided to the Board, concerning the grazing,

23 which certainly falls within the botanical component of

24 Wilson Creek. The BLM currently provides for a single

25 grazing allotment that occurs along the, what I am going to

0812

01 refer to now as, segment one, which extends from Highway 167

02 upstream, if you will, to the boundary of Conway Ranch

03 property. Our permit within the Rancherita Gulch north area

04 allows for the periodic watering of sheep on the creek, but

05 we do permit the sheep grazer to spend any time there to

06 graze.

07 As a result, we find that the conditions of riparian

08 vegetation quantity and quality on that segment of stream

09 replicates in great detail what we also have on the other

10 segments upstream of the Conway Ranch.

11 We are also, at this time, endeavoring through other

12 scientists at the National Applied Resource Science Center

13 -- it is a hard one for me -- in Denver, used to be called

14 the Denver Service Center of the BLM, we are endeavoring

15 through the assistance of physical scientists at that

16 location to undertake a much more complex evaluation of the

17 data I have collected on Wilson Creek as to stream

18 discharge, stream flow if you will, and the adjacent

19 floodplain and the resulting effects of stream flow on the

20 amount and type of riparian vegetation.

21 That concludes my testimony.

22 CHAIRMAN CAFFREY: Thank you, Mr. Russi.

23 CHAIRMAN CAFFREY: Cross-examination, Mr. Birmingham.

24 MR. BIRMINGHAM: Thank you.

25 MR. FRINK: I wonder if we would quickly identify for

0813

01 the record Mr. Russi's written statement as BLM Exhibit 3.

02 MR. RUSSI: Thank you.

03 ---oOo---

04 CROSS-EXAMINATION

05 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

06 BY MR. BIRMINGHAM

07 MR. BIRMINGHAM: Good afternoon, Mr. Russi. I am Tom

08 Birmingham. I am the attorney for the Department of Water

09 and Power of the City of Los Angeles. I have just a few

10 questions for you.

11 The Bureau of Land Management has protested the water

12 rights application filed by the Department of Water and

13 Power.

14 MR. RUSSI: That is correct.

15 MR. BIRMINGHAM: The basis of the protest is the

16 potential environmental effects resulting from the

17 appropriation of water from Wilson Creek?

18 MR. RUSSI: That's correct.

19 MR. BIRMINGHAM: Your testimony, BLM Exhibit 3 on Page

20 3, states the following:

21 In addition, LADWP finds that entire

22 dewatering Wilson Creek Delta "seems unwise"

23 given the uncertain time span reestablishing

24 new habitat on Mill Creek and that the

25 rewatering process, as described beginning at

0814

01 Page 11 of the Plan, may naturally develop

02 waterfowl habitat with a concurrent rise in

03 water table. We agree with these statements.

04 (Reading.)

05 Is it the position of the Bureau of Land Management

06 that it opposes the dewatering of Wilson Creek?

07 MR. RUSSI: We do oppose the total dewatering of Wilson

08 Creek, yes.

09 MR. BIRMINGHAM: And is the basis of that opposition

10 the value which the Bureau of Land Management places on the

11 habitat of Wilson Creek?

12 MR. RUSSI: That is correct.

13 MR. BIRMINGHAM: I have no further questions.

14 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

15 Mr. Gipsman.

16 He apparently left.

17 Ms. Bellomo.

18 ---oOo---

19 CROSS-EXAMINATION

20 BY PEOPLE FOR MONO BASIN PRESERVATION

21 BY MS. BELLOMO

22 MS. BELLOMO: Good afternoon, Mr. Russi.

23 MR. RUSSI: Good afternoon.

24 MS. BELLOMO: Mr. Birmingham asked one of the questions

25 that I was going to ask, and you just answered that the

0815

01 basis for opposing the total dewatering was the value placed

02 on Wilson Creek.

03 Is another basis for that opposition the concern over

04 how long it might take for habitat to become established on

05 Mill Creek?

06 MR. RUSSI: That's correct.

07 MS. BELLOMO: Just so I understand you correctly, does

08 BLM own land that is above highway 167 on Wilson Creek, but

09 not below?

10 MR. RUSSI: That's correct.

11 MS. BELLOMO: So with regard to the study that you

12 conducted, your office conducted of Wilson Creek, did you do

13 any study of Wilson Creek below 167?

14 MR. RUSSI: Not currently. As I mentioned, there was a

15 study done initially in 1978.

16 MS. BELLOMO: Do your opinions regarding Wilson Creek

17 in your written testimony, then, pertain exclusively to, the

18 written testimony, to exclusively to the portion of Wilson

19 Creek that is above Highway 167?

20 MR. RUSSI: That's correct.

21 MS. BELLOMO: Do you have an opinion regarding the

22 value of Wilson Creek between 167 and Mono Lake, in other

23 words, below the BLM land?

24 MR. RUSSI: I do.

25 MS. BELLOMO: Can you tell us what that opinion is?

0816

01 MR. RUSSI: In very general terms, Wilson Creek

02 downstream of Highway 167 does not exhibit the riparian and

03 aquatic attributes that you see above Highway 167. They are

04 less so.

05 MS. BELLOMO: Does it diminish -- do the riparian

06 habitat values diminish as you go from 167 down towards the

07 lake or -- do you follow my question?

08 MR. RUSSI: I do follow it. Yes, they do diminish as

09 you go from Highway 167 down to the lake, and in a

10 diminishing sequence. You will find that the amount and the

11 diversity that I have physically observed myself, without

12 any direct measurements, sequentially decrease as you go

13 down the stream course towards Mono Lake.

14 MS. BELLOMO: Does BLM have any opinion -- restate the

15 question.

16 I understood you to say that BLM opposes the total

17 dewatering of Wilson Creek?

18 MR. RUSSI: That's correct.

19 MS. BELLOMO: Does BLM have an opinion regarding

20 dewatering Wilson Creek from below 167?

21 MR. RUSSI: At this point in time, we do not. Simply

22 because it is not public land. It is National Forest land.

23 MS. BELLOMO: Is it fair to stay that the fact that you

24 did not study the area below 167 is not an endorsement of

25 either the value or lack of value of that stretch of the

0817

01 creek?

02 MR. RUSSI: That's correct.

03 MS. BELLOMO: From the perspective of -- let me step

04 back one question. I don't really know the right terms to

05 be using. The values you look at, the habitat values or you

06 use the word "biotic values," I am not familiar with that

07 terminology --

08 MR. RUSSI: Those are really interchangeable terms.

09 What we are generally and/or specifically looking at on

10 Wilson Creek, to this point, are various soil vegetation and

11 water characteristics that make up various types of habitat

12 found on the creek.

13 MS. BELLOMO: Can you indicate for the area that you

14 studied above 167 where are the, if one could say this, the

15 best stretches of habitat or most valuable stretches have

16 habitat on Wilson Creek?

17 MR. RUSSI: If I could go to the map, I'll show you.

18 MS. BELLOMO: Let the record reflect that the witness

19 is referring to R-LADWP-65, I believe.

20 MR. RUSSI: As I said, we have inventoried all three

21 segments of Wilson Creek. The one with what appears to be,

22 at this point in time, based on physical observation, and

23 based on measurement, as far as, if you will, the greatest

24 biodiversity of habitat types, occurs in segment right

25 here, just upstream from Conway Ranch. That is not to say

0818

01 that the other two segments do not have equally -- I am

02 sorry, do not have values of a similar type. It just that

03 the concentration of the values that we documented in that

04 reach are quite unusual, based on what we measured in other

05 similar stream types in the Eastern Sierra.

06 MS. BELLOMO: While standing at the map, could you

07 indicate where the other two sites are, approximately, that

08 you studied?

09 MR. RUSSI: Yes. From the diversion point, right

10 here, where Wilson Creek begins from the return ditch, from

11 the powerhouse, to a point just upstream from the Lundy

12 Powerhouse Road, even though the Lundy Powerhouse Road is

13 not on this map, the BLM land extends just a little

14 downstream from Lundy Powerhouse Road.

15 The other reach extended from the very bottom of land

16 ownership or easterly boundary of the Conway Ranch

17 downstream to Highway 167.

18 MS. BELLOMO: Thank you.

19 Are you familiar with Wilson Creek as it passes through

20 the Conway Ranch private property?

21 MR. RUSSI: I am generally familiar with it.

22 MS. BELLOMO: Do you have any opinion regarding the

23 habitat value of that portion of the creek?

24 MR. RUSSI: From what I know of it, it has very similar

25 values in diversity of vegetation types and other biotic

0819

01 components that we measured on that middle segment, or what

02 we call segment two, that I just pointed to you on the map.

03 MS. BELLOMO: As I recall, you considered that to be --

04 I don't know how you characterized this, as high value or --

05 MR. RUSSI: It has a high value in the diversity of

06 habitats that are present and also in the quality of those

07 habitats.

08 MS. BELLOMO: What are the characteristics of the

09 quality of habitat?

10 MR. RUSSI: One example, I will just use it for

11 vegetation, is the amount of vigor that you can measure

12 within the various species of vegetation that you find there

13 along on the creek. Vigor is, in the most general terms, is

14 how well that plant grows in a given growing season.

15 MS. BELLOMO: Did you find the plant vigor or

16 vegetation vigor in the three sections that you studied to

17 be something you would consider to be positive?

18 MR. RUSSI: Certainly positive, but they aren't

19 necessarily out of the ordinary for riparian vegetation on

20 streams which are managed properly.

21 MS. BELLOMO: Would it be fair to say, then, that the

22 portions of Wilson Creek that you studied you consider are

23 managed properly?

24 MR. RUSSI: In my opinion, yes, they are, very much

25 so. We have control over the livestock, and there are,

0820

01 essentially, no other impacting uses of a substantive nature

02 occurring on any of those segments.

03 MS. BELLOMO: Are you familiar enough with Wilson Creek

04 as it passes through the Conway Ranch to have an opinion as

05 to whether there is evidence of damage to the creek from

06 livestock grazing there?

07 MR. RUSSI: I have general knowledge. It appears to

08 me, from what I have seen of Wilson Creek on that land in

09 the past, over my 15-year duration in the resource area, is

10 that they tend to manage their livestock use very

11 appropriately, as it concerns riparian vegetation.

12 MS. BELLOMO: Do you know -- what we are talking about

13 is sheep grazing, correct?

14 MR. RUSSI: That's correct.

15 MS. BELLOMO: Do you know if sheep are allowed to water

16 in Wilson Creek, go get water in Wilson Creek?

17 MR. RUSSI: I assume that they water sheep on Wilson

18 Creek on Conway. I don't know that for a fact.

19 MS. BELLOMO: Do you have any opinion regarding the

20 value of the waterfowl habitat at the mouth of Wilson Creek

21 as it exists today?

22 MR. RUSSI: I have only taken one walk down to the

23 mouth of Wilson Creek, and that was with Scott Stine and

24 some others back in September, October of last year, as I

25 recall. And because we haven't had land ownership

0821

01 responsibility around the lake for a number of years, I

02 wasn't familiar with it, other than that one day. I saw

03 various hydrophytic plant species occurring at the mouth of

04 Wilson Creek, which indicated, you know, a wetted soil

05 condition over substantial period of time. As to the

06 complexity or the availability of different habitat types or

07 their actual aerial extent, I can't offer anything like

08 that.

09 MS. BELLOMO: Do you have any opinion regarding how

10 long it would take, if it were to occur, to establish a

11 similar type of habitat at the mouth of Wilson Creek -- of

12 Mill Creek if that were rewatered and Wilson Creek was

13 dewatered?

14 MR. RUSSI: Whatever conclusion I might be able to draw

15 would have to stem from knowing what the actual hydrology of

16 the site would be, whether it would be continuous or

17 discontinuous, and what other management measures would be

18 employed to stimulate a similar environment at that point.

19 MS. BELLOMO: Turn to your testimony, Exhibit R-BLM-3,

20 your written testimony, I want to ask you a question about a

21 comment on Page 3.

22 I know somewhere on this page you refer to, I believe

23 it is on this page, that you refer to having observed gains

24 and losses on Wilson Creek during the course of your study?

25 MR. RUSSI: That is correct.

0822

01 MS. BELLOMO: Do you recall where that it is?

02 MR. RUSSI: Actually, I think that was on Page 2, under

03 the Stream Flow paragraph, which is the second paragraph up

04 from the bottom.

05 MS. BELLOMO: Thank you.

06 MR. RUSSI: I don't recall or didn't hear your

07 question.

08 MS. BELLOMO: I didn't ask it. I was trying to find

09 it. Thanks.

10 Do you have an opinion as to what would account for the

11 gains in Wilson Creek that you observed?

12 MR. RUSSI: As far as the gains in Wilson Creek, to me,

13 obviously, it is coming from groundwater charged into the

14 stream channel, which also may be coupled with the natural

15 inflow of water from springs or a spring, I'm sorry, two

16 springs, which occur to the north and slightly to the west

17 of Lundy Powerhouse, which would be on the northern aspect

18 of Copper Mountain.

19 MS. BELLOMO: You refer to groundwater recharge, I

20 think?

21 MR. RUSSI: I did.

22 MS. BELLOMO: What would the source of that be, in your

23 opinion?

24 MR. RUSSI: Very complex question. I can only guess,

25 and part of it would have to stem from the subsurface flow

0823

01 that is apparently coming from Rancherita Gulch,

02 Rattlesnake Gulch. Also from water that is periodically

03 provided to Conway Ditch, which comes from the Virginia

04 Creek watershed, which is an entirely different watershed in

05 the Mono Basin. Also from water emanating from the two

06 springs that I just mentioned.

07 MS. BELLOMO: In your opinion, is it possible that

08 there is also groundwater recharge occurring from irrigation

09 water that is spread on the Mattly Ranch on the other side

10 of the high water?

11 MR. RUSSI: I would have to assume that is occurring

12 just because the water is placed there and the gradient of

13 land form is in the direction of the Conway Ranch.

14 MS. BELLOMO: Turn to Page 3 of your testimony, the

15 last three lines. It's the final sentence. You state that:

16 We believe it is necessary to recognize

17 that the quality and quantity of biotic

18 resources currently present on Wilson Creek

19 substantially contributes to the overall

20 ecological health and long-term productive

21 potential of natural resources within the

22 Mono Basin system. (Reading.)

23 Can you explain what you mean when you say "contribute

24 to the overall ecological health and long-term productive

25 potential"?

0824

01 MR. RUSSI: I will try to do it in as few words as

02 possible. Because of the current general conditions that we

03 find on Wilson Creek aquatically and vegetatively, the

04 habitat diversity along those three segments is

05 substantively diverse and, thus, provides living space, if

06 you will, for various species of wildlife that can occupy

07 those areas.

08 Given the extent of those habitats and their current

09 quality, as a biologist, I find that areas of this type tend

10 to be focal points for, on occasion, substantive numbers of

11 various species of wildlife. That is sort of like providing

12 various baskets, if you will, to put your eggs in. And it

13 is a contributor to the various eggs in the larger basket of

14 Mono Basin.

15 MS. BELLOMO: Would you have any concern that if Wilson

16 Creek were dewatered and the habitat that you describe were

17 lost, that during the time that it would take to create new

18 habitat on Mill Creek, wildlife that uses Wilson Creek

19 could, basically, be short on habitat to inhabit?

20 MR. RUSSI: One can infer that if you take away

21 something, such as a portion or all of a riparian zone, that

22 does eliminate the ability of the species that were

23 utilizing that site to occur at that site.

24 It may also mean, but will be very difficult to

25 document, that you would actually numerically eliminate the

0825

01 species that were occupying those sites, particularly, for

02 those species that are not very mobile. As we all know,

03 birds can fly. However, a shrew or a mole is not able to

04 travel very far from a riparian aquatic zone. So, species of

05 that type, in most instances, be eliminated.

06 MS. BELLOMO: If I recall your testimony correctly, you

07 found significant numbers of shrews and moles in Wilson

08 Creek in some areas?

09 MR. RUSSI: We found a small mouth near the -- based on

10 some cursory physical evidence that we found there to be

11 quite extensive. It was quite mind boggling, actually.

12 MS. BELLOMO: I recall you saying, you may not recall

13 this, maybe you do, I recall you saying on a field trip that

14 I went on at one point that you were participating in, that

15 Wilson Creek was one of the creeks -- what I recall you

16 saying is that Wilson Creek was a creed in your region that

17 you would sometimes go to when you wanted to really study an

18 issue about a healthy creek that was functioning well.

19 Do you recall that statement?

20 MR. RUSSI: I recall saying something like that, yes.

21 What I am referring to is that for the public lands -- I am

22 sure many in the audience will recognize that the manner in

23 which land management occurs on some of the public lands is

24 less than desirable. From my standpoint as a scientist, it

25 is very difficult on most aquatic systems, at least in the

0826

01 areas in which I work in the Eastern Sierra, to find

02 reference sites. Reference sites are things that you can go

03 to, whether you are looking at aquatic or upland systems,

04 and find conditions occurring which, based on technical peer

05 review literature, are expressed in their complexity,

06 diversity, and quality of that site.

07 So that is what I was technically referring to when I

08 mentioned that to you and other people. It was very nice

09 for me to be able to see Wilson Creek in its current

10 condition and to recognize that I had something to measure

11 it against if I desired to do that, assume I could find a

12 similar soil/vegetation community in other parts of the

13 resource area that I work in.

14 MS. BELLOMO: Turning to Page 4 of your testimony, you

15 indicate that, at the top of the page:

16 In order for an informed debate to occur on

17 the wise stewardship of the Mill/Wilson Creek

18 resources, we regard a collection of

19 additional hydrologic information,

20 particularly of Mill Creek, as a fundamental

21 starting point. (Reading.)

22 My question is: What type of information are you

23 referring to as being needed?

24 MR. RUSSI: The most fundamental one that I can

25 imagine that I am not aware is available in the extent that

0827

01 I would like to see it, would be a definition of the, if you

02 will, gaining and losing reaches of Mill Creek within the

03 area of discussion, as far as the Waterfowl Restoration Plan

04 is concerned.

05 MS. BELLOMO: You lost me there, so I have to ask what

06 do you mean by "gaining and losing reaches"? What is the

07 significance of that?

08 MR. RUSSI: Gaining and losing reaches are portions of

09 the stream channels which either lose water as a result

10 water infiltrating into the subsurface, or there is an

11 increase or an addition of water to the stream channel as a

12 result of a high water table or a spring environment that is

13 immediately adjacent to the channel itself, or something of

14 that type.

15 MS. BELLOMO: Why would it be significant or important

16 to have this information in order to have an informed

17 debate?

18 MR. RUSSI: If one wants to stick X amount of water in

19 Mill Creek at the expense of potentially of removing water

20 from another stream system, it seems prudent to me to

21 understand how efficiently a stream channel uses water,

22 either gaining or losing.

23 MS. BELLOMO: Again at Page 4 in the conclusion section

24 at point two, you state -- I think this is a list of

25 measures that you consider to be essential; is that correct?

0828

01 MR. RUSSI: These are thoughts or points that BLM is

02 offering as a starting point, as far as additional

03 information or a general model about how to go about

04 understanding the Mill Creek and Wilson Creek areas.

05 MS. BELLOMO: Thank you for that clarification. At

06 point two you state:

07 Conduct the necessary work to understand the

08 surface water hydrology of Mill Creek.

09 (Reading.)

10 Is that something different than what you just

11 explained?

12 MR. RUSSI: No, it is not.

13 MS. BELLOMO: Do you have any concerns about whether

14 Mill Creek can, in fact, support the kind of vegetation that

15 Dr. Stine and the other State Lands Commission's witnesses

16 predict will occur on Mill Creek if it is rewatered?

17 MR. BIRMINGHAM: Objection. There is no evidence that

18 he's read the testimony of State Lands Commission's

19 witnesses.

20 MS. BELLOMO: That is a good point.

21 CHAIRMAN CAFFREY: Sustained.

22 Ms. Bellomo sustains your objection, Mr. Birmingham.

23 MR. DODGE: Now I know it is too late in the day.

24 MS. BELLOMO: Mr. Russi, have you reviewed the

25 testimony of Dr. Scott Stine that has been submitted in this

0829

01 case on behalf State Lands Commission?

02 MR. RUSSI: Yes, I have.

03 MS. BELLOMO: Did you review the testimony of the other

04 witnesses that -- I am not sure who is State Lands

05 Commission and who is State Parks and Recreation witness.

06 MR. RUSSI: I read all the testimony of State Lands and

07 DPR.

08 MS. BELLOMO: My question is, having reviewed that

09 testimony, do you have any concern about whether Mill Creek,

10 if it is rewatered, can, in fact, support the kind of

11 vegetation that Dr. Stine and the other -- those three other

12 witnesses predict would grow on Mill Creek?

13 MR. RUSSI: I have questions in my mind concerning the

14 general descriptions that were given by Dr. Stine and others

15 as to the immediate potential, if you will, is what I am

16 referring from their testimony, for the recovery of

17 vegetation along Mill Creek where we now see little or no

18 actual expression of true riparian vegetation, given the

19 cottonwoods. There is some large club willows that are

20 there. The soil type along portions of Mill Creek,

21 primarily from what I have observed in the area downstream

22 from Mono City, would be difficult to provide a soil

23 environment or soil matrix for rate establishment of

24 riparian vegetation.

25 MS. BELLOMO: Would you expect that over sufficient

0830

01 time or over time that soil might build up along Mill Creek

02 as water flowed down it?

03 MR. RUSSI: I think that is distinctly possible.

04 MS. BELLOMO: What would the source of that be?

05 MR. RUSSI: I am not sufficiently familiar with all the

06 soil conditions on Mill Creek, and I am just going to refer

07 to Lundy Dam down to Highway 395. I am not well schooled

08 there. My only immediate reaction to your question, is that

09 certainly there will be some transport of sand and other

10 similar granular material over slide slopes over time, but

11 the rate and volume at which that occurs, I couldn't really

12 predict at this time.

13 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me for

14 interrupting you. I fear we are getting into that, or maybe

15 even beyond that, gray area of quite a bit of detail that

16 might be more appropriate in the succeeding proceedings.

17 Also, while I am interrupting you, let me just say my

18 schedule is such, as I announced yesterday, that I can't

19 stay this evening nor can Mr. Brown.

20 So I don't know what this witness' plans are on

21 returning on the -- are you two planning to return, Mr.

22 Russi?

23 MR. RUSSI: I don't know that I can return on the 18th,

24 but I will be here on the 24th, 25th, and 26, whatever those

25 dates were.

0831

01 CHAIRMAN CAFFREY: I don't know whether we are going to

02 get a chance to finish cross-examination, let alone get into

03 anything else with you today. I am glad you do plan to come

04 back at some point. We will have to factor that in, too. I

05 also wanted to let you know what, in terms of your schedule,

06 we've probably got another 20 to 25 minutes left before we

07 have to wind up today.

08 So, actually, you have about 30 minutes left, if you

09 plan to take it all. So, that would probably just, if that

10 is what your plan is, that is probably what we would

11 conclude with today.

12 Do you think you are going to take all that time?

13 MS. BELLOMO: Actually, I only have a few more

14 questions. I prepared my questions before we got into the

15 earlier discussion, and I forgot, really, to take that, you

16 know, suggestion into account. But let me just ask one more

17 question, and if this is too detailed, let me know. I don't

18 really know.

19 CHAIRMAN CAFFREY: Go ahead.

20 MS. BELLOMO: Do you have an opinion regarding the

21 channel mobility at Mill Creek and if it is likely to change

22 its course significantly with high flows?

23 MR. RUSSI: Assuming for the sake of discussion that

24 high flows are somewhere on the order of over 100 cfs, I

25 would expect certain areas of Mill Creek downstream of

0832

01 Highway 395, to change channel location substantially over

02 time until there is sufficient bank holding vegetation and

03 root masses to establish an actual intact channel system.

04 MS. BELLOMO: Just to clarify, what area are you

05 talking about, referring to?

06 MR. RUSSI: I am speaking, generally, about that

07 portion of the stream channel that is basically over the --

08 down over the hill from Mono City, down, I am going to say,

09 to some indefinite point below the County Road.

10 MS. BELLOMO: Thank you. I have no further questions.

11 If I could just ask something before you get to the

12 next person.

13 CHAIRMAN CAFFREY: Sure.

14 MS. BELLOMO: We'll be back for the next three days,

15 the People for Mono Basin Preservation. And I know that

16 there are some people over there that, if they were able to,

17 had hoped to come and hear our testimony. They may have

18 another shot at doing that. During the break, I was talking

19 with Mr. Vorster and a few of the other witnesses and

20 getting a sense that maybe, although we would be the next

21 witnesses in order after Mr. Russi, maybe there was a

22 possibility that we wouldn't be the first people on that

23 Monday.

24 I'm just wondering, before we conclude today, if we can

25 get an idea if, in fact, someone is going to ask to jump

0833

01 ahead of us so we can tell any of our citizens who might

02 have a chance to cone over here, to be here.

03 CHAIRMAN CAFFREY: Mr. Frink, I am not sure I've got

04 full track of the adjustments we made for the 18th date.

05 But it seems to me that is probably something we can be

06 getting to early in the day of the first day of the

07 three-day block.

08 MR. JOHNS: If I may, I think it might be possible.

09 There are a few witnesses on the 24th that might come in

10 that do have a conflict on the 25th. And maybe we can have

11 them address the Board. I know that Mr. Vorster expressed

12 concern about his availability on the 25th.

13 MR. VORSTER: Dr. Stine is in the same boat.

14 MR. JOHNS: What we might have, perhaps, if he can

15 think about having Fish and Game bringing their fisheries

16 people forward on the 24th and put the waterfowl people off

17 to another time. We might be able to fill the 24th with

18 fishery related issues. Again, if that is a possibility.

19 CHAIRMAN CAFFREY: I am not sure I follow all of that.

20 Mr. Roos-Collins.

21 MR. JOHNS: We also have Cal Trout that would be coming

22 on that date, too.

23 CHAIRMAN CAFFREY: Mr. Johns changed his name.

24 MR. JOHNS: Excuse me.

25 CHAIRMAN CAFFREY: Mr. Roos-Collins, please.

0834

01 MR. ROOS-COLLINS: Mr. Chairman, I suggest that State

02 Water Board staff apply your rule of adjustment through

03 discussion after this hearing closes.

04 CHAIRMAN CAFFREY: That is a good suggestion. I think

05 what you're saying is, kind of let Mr. Frink try to work

06 this all out with the parties. We have a lot of adjustments

07 that have to be made to accommodate folks. We will do what

08 we can to accommodate the folks that are coming to hear that

09 portion of the hearing. We shall be presenting --

10 Ms. Bellomo, we will do everything we can. Give you

11 some kind of date or time when you can expect to be on.

12 MS. BELLOMO: Thank you.

13 CHAIRMAN CAFFREY: You might want to call Mr. Frink in

14 the intervening days between now and when we come back to

15 find out what he's come up with.

16 Let me check and see here that -- is there any other --

17 if I go down the list here, maybe some of you can give me an

18 idea of how much time you would like, if any, to

19 cross-examine this witness, and maybe we can just at least

20 tick off some of the folks.

21 I know that Mr. Haselton has come back. He was gone

22 earlier. I take it he is not here now.

23 Mr. Ridenhour is gone, Dr. Ridenhour I should say.

24 Mr. Roos-Collins, do you plan to ask questions of this

25 witness?

0835

01 MR. ROOS-COLLINS: Yes. Five minutes or less.

02 CHAIRMAN CAFFREY: Why don't we get to that right

03 now, then, if that is all right. Trying to get in as much

04 as we can here.

05 ---oOo---

06 CROSS-EXAMINATION

07 BY CALIFORNIA TROUT

08 BY MR. ROOS-COLLINS

09 MR. ROOS-COLLINS: Mr. Chairman, he appears to be a

10 very succinct witnesses. I am confident that I can complete

11 my cross-examination in five minutes.

12 CHAIRMAN CAFFREY: Go ahead.

13 MR. ROOS-COLLINS: Good afternoon, Mr. Russi.

14 MR. RUSSI: Good afternoon.

15 MR. ROOS-COLLINS: You referred to historic survey data

16 for various lands now in the Scenic Area managed by Forest

17 Service.

18 MR. RUSSI: That is correct. It has to do, as I

19 mentioned, with fish habitat inventories on Mill Creek and

20 Wilson Creek.

21 MR. ROOS-COLLINS: Does the Bureau of Land Management

22 have any historic survey data for Rush or Lee Vining?

23 MR. RUSSI: I have been trying to recall that since I

24 came over here. I am going to have to check the file when I

25 go back.

0836

01 MR. ROOS-COLLINS: Mr. Chairman, I would like to pursue

02 this line of questioning upon Mr. Russi's return.

03 CHAIRMAN CAFFREY: That is agreeable if he needs to get

04 additional information. You want to take a break in yours

05 now? You are through, then, until we get to that point?

06 MR. ROOS-COLLINS: I am through.

07 CHAIRMAN CAFFREY: Maybe that is just as -- unless

08 anybody has some burning need, and since he is coming back.

09 MR. RUSSI: Mr. Roos-Collins, that was Lee Vining you

10 said, and Rush, both?

11 MR. ROOS-COLLINS: Yes, please. When you come back, I

12 will ask specifically who undertook the survey, in what

13 year, what the data pertains to, channel form, riparian

14 vegetation, and so forth, and the form the data is available

15 in.

16 MR. DODGE: Since the request is being made, I would

17 add Mill Creek to that.

18 MR. RUSSI: Mill Creek. If you are talking about Mill

19 Creek, we are all talking about -- I already mentioned, we

20 have an inventory file for that.

21 MS. MURRAY: And you have offered to make that

22 available?

23 MR. RUSSI: I just said a moment ago that it is

24 available for whoever wants it. If we have it for Lee

25 Vining and Rush Creek, and I can't remember if we do, then

0837

01 you are certainly available to have that also.

02 MR. FRINK: Mr. Chairman.

03 CHAIRMAN CAFFREY: Mr. Frink.

04 MR. FRINK: I have a real concern here. We spent weeks

05 talking about the historical conditions of Lee Vining Creek

06 and Rush Creek in the prior hearing. The parties have been

07 on notice for six or eight months, at least, about this

08 upcoming hearing. I don't believe Mr. Russi discussed his

09 data base or studies that they have done in any detail at

10 all on Lee Vining Creek or Rush Creek. And I think, if the

11 parties had wanted that information, they should have been

12 looking for it before.

13 I've got a real concern we are going to greatly expand

14 the scope of this hearing and greatly lengthen it.

15 CHAIRMAN CAFFREY: You are saying none of this

16 information is in his direct submittal?

17 MR. FRINK: It is not in his direct. Our regulations

18 do not restrict the cross-examination of what is in his

19 direct. In terms of asking him to bring in new studies now

20 that have not been previously submitted and which he didn't

21 discuss, I think, in essence, that is the same as these

22 parties introducing the evidence themselves at this point.

23 And I think if they want it, it should have been submitted

24 originally with their own exhibits. If they want it for

25 their own use, apart from this hearing, that's great.

0838

01 CHAIRMAN CAFFREY: That is an interesting point and a

02 good one. Are you suggesting that they could just ask Mr.

03 Russi outside of this proceeding to provide them with that

04 information?

05 MR. FRINK: Yes, I am.

06 CHAIRMAN CAFFREY: Why don't we do that.

07 Mr. Roos-Collins, do you have a point to make, sir?

08 MR. ROOS-COLLINS: Mr. Chairman, I have no objection to

09 that. I did not intend to examine Mr. Russi as to the

10 substance of the data. I am simply anticipating the

11 implementation of Los Angeles' Monitoring Plan which

12 provides for the use of the historical data. I would like

13 this record to include some description of the historical

14 data available from the Bureau of Land Management.

15 MR. FRINK: I think we can get that information as part

16 of the monitoring plan.

17 CHAIRMAN CAFFREY: Get that information as part of the

18 monitoring plan.

19 Ms. Scoonover.

20 MS. SCOONOVER: Mr. Caffrey, I would ask, however, that

21 Mr. Russi make available the preliminary reports to which he

22 referred in his direct testimony and at conclusions of which

23 are the direct testimony. But we have not yet had an

24 opportunity to examine the underlying data. That I believe

25 is relevant and is subject to cross-examination, or should

0839

01 be.

02 CHAIRMAN CAFFREY: Does this get down to the

03 technicality of whether or not this is going to be an

04 exhibit, Mr. Frink; is that the point?

05 MR. FRINK: Certainly, they can request it of Mr. Russi

06 under the Freedom of Information Act. I presume he will

07 supply it.

08 I do have a concern about introducing numerous new

09 exhibits now. I guess we will have to see how it goes.

10 CHAIRMAN CAFFREY: Is this a solution, then, have Mr.

11 Russi share with the parties who have requests the

12 information outside of this proceeding, and then when they

13 cross-examine him, for instance, along the lines Ms.

14 Scoonover was suggesting, since there is a relationship,

15 that they could then see how far they can go with the

16 questioning, based on the reasonable confines of his

17 testimony, insofar as our regulations allow them to go

18 beyond that?

19 MS. BELLOMO: Mr. Chairman, may I --

20 CHAIRMAN CAFFREY: Next witness.

21 Let's just wait for an answer. I don't know if he

22 heard my question. I don't know how to repeat it again.

23 MR. FRINK: I am sorry, Mr. Chairman, I was getting

24 lots of --

25 CHAIRMAN CAFFREY: What I was asking was, is your

0840

01 suggested ruling that, as I stated earlier, have Mr. Russi

02 provide the information outside of this proceeding to these

03 individuals, under the Freedom of Information Act, to cite

04 what you said, and then, to the extent that that information

05 relates to his original testimony and to the extent it is

06 allowed within our regulations that do allow us to go

07 somewhat beyond his testimony, that they can raise questions

08 at that time when they get to their cross-examination, and

09 then we can see if there are any objections in terms of the

10 parameters of how far they want to go.

11 MR. FRINK: Yes. I believe that is a good approach. I

12 simply urge everyone not to try to greatly expand the

13 record, to rehash ground that we went over in great detail

14 three years ago.

15 CHAIRMAN CAFFREY: Ms. Bellomo, you rise?

16 MS. BELLOMO: Yes. My objection is that I believe that

17 Mr. Russi should be required, as he would under the Freedom

18 of Information Act, to give the materials to the parties

19 that are requesting them, but for them to be able to use

20 those materials in cross-examination represents a tremendous

21 windfall for them, because, if it wasn't a quarter to five,

22 they would have had to get up and do their cross-examination

23 today and that would be that. Because Mr. Russi is getting

24 cut off here, now these parties are going to have an

25 opportunity to do discovery and come back and cross-examine

0841

01 him on that material.

02 If that then becomes a standard and we all do discover

03 in the next two weeks for things that we want to

04 cross-examine people on, you know, backup data and what-not

05 for the next hearing, it just seems like a windfall.

06 CHAIRMAN CAFFREY: Here is my reaction to that, and I

07 will ask Mr. Frink to, shall we say, correct me or at least

08 give me his advice.

09 There is nothing that precludes or disallows the

10 parties, that I know of, from talking to Mr. Russi and

11 getting information that is public information from

12 him. And then if they want to come back and cross-examine

13 him, which they have not had an opportunity to do as yet, if

14 they want to come back and cross-examine him on the basis of

15 his already submitted direct testimony, and within our

16 regulations, are able to relate that information and if

17 there is no objection, I believe that is outside of the

18 authority of probably this Board or this Hearing Officer to

19 restrict.

20 Is that fair, Mr. Frink?

21 MR. FRINK: I believe that is an accurate statement,

22 Mr. Chairman. I simply urge everyone to remember the

23 remarks you made at beginning of the proceeding about the

24 relationship between the Board's consideration of the Mill

25 Creek rewatering proposal as part of this proceeding, and

0842

01 further consideration that the Board would have to make of

02 the water right application or, in the event of their change

03 petition, all of this is going to have to be in the future

04 before it can go ahead.

05 I urge everyone not to try and greatly change the

06 direction of this hearing now, particularly going back to

07 the other reason.

08 CHAIRMAN CAFFREY: I think that is important. We opted

09 at the beginning to allow, again I am use the word,

10 "conceptual" discussion, testimony, cross-examination on

11 that subject, or on this subject, as an alternative to just

12 not allowing a discussion on it at all because it relates

13 generally.

14 So, we would hope that you would stay in that spirit

15 and not turn this into a detailed proceeding for something

16 that we are going to have to create a separate record on

17 anyway with all that detail.

18 So, appreciate your zeal, appreciate your good

19 will, and we will try to manage our way through this as we

20 go along.

21 The hour of a quarter to five having arrived, this is

22 probably as good a time as any.

23 Is there anything else, Mr. Frink?

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

25 CHAIRMAN CAFFREY: We will see you all back here on

0843

01 Tuesday, the 18th, at 9:00 a.m. in this room.

02 Thank you all very much.

03 (Hearing adjourned at 4:50 p.m.)

04 ---oOo---

0844

01 REPORTER'S CERTIFICATE

04 STATE OF CALIFORNIA )

04 ) ss.

05 COUNTY OF SACRAMENTO )

08 I, ESTHER F. WIATRE, certify that I was the

09 official Court Reporter for the proceedings named herein,

10 and that as such reporter, I reported in verbatim shorthand

11 writing those proceedings;

12 That I thereafter caused my shorthand writing to be

13 reduced to typewriting, and the pages numbered 612 through

14 841 herein constitute a complete, true and correct record of

15 the proceedings.

17 IN WITNESS WHEREOF, I have subscribed this

18 certificate at Sacramento, California, on this

19 9th day of February 1997.

24 ______________________________

24 ESTHER F. WIATRE

25 CSR NO. 1564