please court daniel a mcdaniel in stockton california on behalf of the central delta parties this case despite all the complications that may appear in it is really a relatively simple case and involves whether or not congress intended that the eight hundred thousand acre feet of water that it wanted devoted to fish and wildlife would be in addition to the existing requirements under the law and we think that it's quite clear that indeed the law does provide that first the project should be was to be an augmentation in addition to what was to be provided now the bureau has come up with a plan to implement the central valley project improvement act or should we decide the legal questions where the water isn't too salty now it hasn't been too salty no indication it's going to be too salty any time soon and the agency recognizes that it has the authority to do something about it if it does get too salty because there is a credible threat that in fact if the continues with this plan it will end up with one of the vile now less standard violations in fact the majority of the years that were modeled during the dry hears and that's when all of this becomes critical is during the dry years in fact there were multiple failures that would have kearse so there is a very real and serious threat that in fact there will be a violation of the standard interpreted it i haven't seen anything that would indicate that the standard should be any different in evaluating whether or not there's a realistic threat that the violation may occur you know i freely admit i'm not completely clear yet on what the u s b arms purchases are all about can you explain it to me i mean i've read this until my eyes are falling and i don't quite understand what these purchases are and how they play into the whole equation valley project improvement act and when those purchases are made in the flows are released for the in accordance with those purchases it takes water out of the  out of the system later on in the year in the summer time in order to provide those flows when the flows are reduced in the summertime then there's a there's a greater likelihood  been there hasn't been any problem and let's not worry about the problem occurring in the future it's not entirely true that there hasn't been any problem for one thing there has been problems in the early one nine hundred ninety s since ninety five since ninety five there has this time this is they've been twenty one purchases that violate the timing problem that you talk about with no harm at all right during that period of time we've had the benefit of very good water years plenty of water their point is you're speculating  and even the past other than some modeling projections don't support your concerns that's exactly what congress did when and acted the c d p guy and it directed congress to look specifically at the worst seven year or later will happen it's just a matter of time and that's why multi year planning is so important in the operation of the district that's why the bureau comes up with a plan well i don't want to marry i don't want to make light of this at all because i understand the entry interests are involved across the border very important but this is not purchases of one of the they're releasing for water skiers they're releasing it in pursuit of one of their obligations under the plan isn't that right are releasing it they have all these balls in the air agricultural and wildlife fishermen there's everything that they're trying to balance out they have a reason that falls within the implementation of the plan for making these purchases and for the timing of the release the point i'm trying to make in my right yeah sure i do believe that they have that they have a plan that they have to operate under they have to make the thing work there's no question that they are the entity the agency that charged with that responsibility but i do believe that congress gave some overall direction and was apparently dissatisfied with the operation of the bureau appeared at a point in time and determined that it needed to pass the central valley improvement act for the benefit of the fish and wildlife and for the benefit of maintaining the belt then they asked you where e m for the purpose of requiring the project to comply with the existing law if we were to agree with you and rule along the lines of everything that you request wouldn't this not put handcuffs on the other side in terms of respecting its other responsibilities other than the salinity standard i would need to know more about what other responsibilities the court is referring to if that's all it is you're trying to lock up a certain percentage or feet of water to make sure that your interest is respected w this not impair their and require the requirement that they have to respect the other interests that are involved no i don't believe it would your honor because they can go elsewhere for the releases of the eight hundred thousand acre feet of water they don't have to take it all or i'm sorry not all of it but they don't have to take such a substantial portion of it from the new maloney's project when new maloney's is there the last opportunity for them down the way use water from that project for water quality purposes i'm having probably better educated i was thinking that the issue is the bureau first take at least eight hundred thousand acre feet off the top for the fish and then use what's left for the irrigation districts or does it first there sure are that the salinity standards are made for the irrigation districts under all circumstances and then take water for the fish but i'm not clear on whether that's really the question or whether the question is between satisfied and i believe that's at the heart of our case is that those obligations have to be satisfied first this is why i'm having trouble understanding i'm asking about new malone versus for analysis versus the fist and you're talking about ninety two active obligations i'm sorry trouble connecting the general conceptual discussion with the facts of the case the nine hundred ninety one of the requirements in one thousand nine hundred two was the obligation of the bureau to comply with allison at the standard that was something in effect and that's what congress said is you shall beg that date operating the project in accordance with all of the existing legal obligations that you have and then after that add eight hundred thousand acre feet that we want applied to the benefit of fish and wildlife for the restoration of the fish and wildlife and then after that i would say that if there is water remaining that water can be provided based upon certain circumstances will have to place the government under receivership i think that would be completely unnecessary because i thought why because things change things change so rapidly what we're talking about is planning  and allocation and that's what got us here in the first place was the government's plan and the allocation was not to meet the preexisting obligations and then use some water from that project to meet the eight hundred thousand acre feet plan that the government came up with was a plan to say we want to put new moneys water to work and we want to take away from all the preexisting obligations in order to provide that water from the project i think all the court would be required to do is direct the bureau to comply with the requirement many of the people in that within the two districts and one of the plaintiffs in this case in fact that has appropriated rights as well you legs yes in fact it was how much water do you claim that they appropriate the by alexander hildebrand any any measure that you want well what i'm struggling with your honor is that you're if you're free let me have appropriated water rights and mike for question to you just a simple what the extent of the appropriation i can't tell you exactly what the amount is it's in the record though in the permits the second feat that are permitted to be appropriated by the as far as the profit of rights that we tendered ok the second thing i don't completely february fifteenth two thousand and six that seems to say somebody is threatening the salinity standard so we're going to do something about it permit wise what what's the impact of this document that i'm showing you i think  honor is that there still there's still a need for the court to be concerned despite the fact that there have been these years of that we've benefited from recently of good rainfall  but the bureau has still been and as you can see you see from that order has not been doing the monitoring that was required and in fact one of the or at least two of you mean your interests i would say that there was success in front of the state water resources control board as far as that order is concerned but that doesn't take care of us as far as the central valley project improvement act is concerned but isn't it the same thing i mean this is not rhetorical questions you laid this honest i mean i get it this morning i read it this quickly as i could and i could not quite sure i understand how it fits into the picture and that's what i'm asking has the other side the same s placed before the court and i felt that it was appropriate place this order before the court because it shows what's going on most recently as far as water quality well you know i'm just really  mine with what to do with this thing the state water board finds there is a threat to d d r and us that you have the department of water resources united states you have reclamation will violate their permit license conditions and then it talks about san joaquin old what that means is that the euro is is very nice most recent years that they are making a claim that there's been no violation that everything's rosy and nobody needs to worry about doing anything because we promise that we will comply here there have been problems so this is very very so it's this is the this is just facts that relate to the issues at hand or summary judgment yes i think it's just more current  information and on what's going on no harm at the factual record i think that would be a fair statement so the real the only significance of the cease and desist order is that if the case went back to the district court there might be additional evidence to show a genuine issue that's correct your honor i'd like to reserve a kind of unregular to try to increase the factual record at the appellate level but we now  understand what you're trying to do  by the permit or otherwise that pertains to how the bureau plans to meet the standard in the future there is no requirement for it to set aside or dedicate water at new malon reservoir so that it can guarantee that several years in the future it will always be able to meet that requirement as has been observed that the bureau has a lot of balls that it has to juggle it's got a plan to do that were in the last seventy one years and if you assume that the model is that the players strictly adhere to that there would be violations of the sort of the standard in a certain percentage of months all kinds of months i mean minimize as far as i read her declaration of the sixteen percent of the season months and you're talking about salinity going into agricultural land that would wipe out the agricultural land talking about going above the point seven e c limit which would be harmful to agriculture if i were in their shoes and i read peggy manses thing i'd be worried about the viability of my land in the future and wondering about your plan well as we of flexibility so that plain that for me well there are a number of things it can do if it looks like there's going to be a problem it can start taking water away from the water service contractors the contracts yes they would do what is necessary to avoid violations and they have my concern is this it looks to me as though under the plan it's pretty forseeable that sometimes the water's going to be to say oh i too salty for the farmers it's also plain that the bureau has the power under the law to see that it that that problem does not materialize my concern is is the bureau committed in obligated to exercising the power to protect the farms i can easily imagine bureau personnel thinking the fish are more important than the farms it's not going to protect the farms it's going to take care of the fish and it will be just as well if there was not so much farming as your personnel have that philosophy goodbye farmers and i want to know if the farms are at risk of that philosophy well the we have seven or eight years of drought the point is that a person can come into court now a decade in advance of that possibility happening and say i want to get an injunction on how interests the fisheries people to come in and say we want an injunction to make sure that the bureau sets aside enough water and malone that's that will always have enough water for fisheries sort of quite a feat for as this is a fluid situation and you need a lot of set aside a certain amount of water it could do that but if it's not i guess the congress has ordered the bureau to give so much water for the fish plus to give so much water to the farms the only way that there is i think a federal court this is not a very good position to deal with that problem and i would stress that these this is really a state law i think concerned what can we do i'm really asking this seriously i'm wondering is it possible to just tell  during what years storm or in the reservoir so that you have more extra water to deal with dry years for both fish and farms i think will be deleterious to really get into that because there are so many i guess that's why i'm hanging out that has to meet a performance standard of providing at least eight hundred thousand acre feet off the top for the fish and it has to meet a performance standard for providing someone to be below zero point seven for absolutely right that the analysis standard which is the only one in contention in this case that the board there said that there is no threat a violation of that standard the threat there is regard in regard to us there are three possible ways to meet the standards in times of trouble you can work to contractors and cut that back you can use stored water or you could purchase water since nine hundred ninety five of you ever done any of those three in order to that's if you look in the interveners supplemental excerpts of record at tab two o's seven pages one eighty four two one ninety two is where mr bolling talks about deviating from the though there's not a threat in violation of rebel us they they think the state thinks there's a threat in violation or at least of the waterboard thinks there's a threat in violation of these three other stations and so they've stepped in with a compliance order to deal with threats because once you've ruined the soil and killed the crocs doesn't do any good to say oh i you know we haven't been doing this quite right we need to give them more fresh water and the state does and what you're doing is conceding that you're b three water is water that's acquired by the bureau for my clients and as point out the record they've had twenty one transfers over six hundred thousand acre feet and you received another twenty eight j motion  augmentation having to do with the recent decision by the third district court of appeals and you're probably wondering why that was sent to you and what relevance it may have to this case well the reason why is my clients  when they made these transfers to the bureau they went in front of the state water resources control board and they said here are water rights here's the water that we're transferring to the bureau and we want to change our water rights in the bureau in the state court had proceeding called d c sixteen forty one ending up in decision d sixteen forty one well what was interesting about that decision is the same arguments that were being made at the federal district district where the same arguments that were made at that court and we're talking and at the third dca the legal theories as well as the factual underpinnings of what the opponents have argued here were found to be lacking in one team and there was there was no support form in fact one of the key things that mr mcdaniel left out of the question two i forget which judge asked it was what is the right pairing and title to what my parents entitle to natural flow my parents are not entitled to store water and now this is not a big deal in most cases but in this case it is because what they're arguing for is they're arguing for release of water from my client's resit force in the summer time that is not my pairing water it's stored water they have no right to that water and white that's t's an interesting question that isn't going to go i think what what's the effect of that opinion that you sometimes well that's an it's an interesting question as to whether or not maybe part of this case is moot or not we had discussions in our office about whether or not parts of this case and specifically relating to be three would be moot so even if it got sent now back to the district court argument would be is that these these matters of are even heard by the state or resource control or gone up for trial and i do agree it's at the thir part of the b two issue but since that issue in our view has already been put polluted as well by judge winters prior purple how do you calculate right parian rights in the current environment where everything is under control of aqueducts dams and how do you calculate right parian rights well and that's a that's a great question actually it's done by the department of water resources and they share that information with the state water resources control board division of water rights but they do this they get some kind of a formula that tells you what the right period flow is you know what we do understand what came river which is a little bit different in sacramento they go basically go to the reservoir was at the headwaters and they'd take in the daily flow that's coming into the reservoirs and then they actually give a benefit to the downstream users and they couple quick points before i use of my time you also asked about the interim plan of operation and you feel that there's this great threat that's coming based on picking minds as testimony i should give you a little idea about how the modeling is done and how the interim plan of operation is set up the interim plan of operation was set up with a forecast with storage that's currently in the maloney's in feb and then what they do is they forecast how much water is going to come into new maloney's they do it on a what's called a ninety percent  very conservative standard and then what we did under the interim plan of operation is that we assign for there not a protected inflow in storage we put a numeric value and then we assign a quantity for water  numbers well the way the model runs is the model says we're not going to use any more than what specifically allocated under the under the i o p when we run the model so you may have situations in fact we pointed  testimony and this was before the state water resources control board and before judge winter as you may have incidents where the models are as you were violated the standard but you malloy still may have a million a million five acre feet and you're locked in my the premises because you're locked in by the premised on the assumption of the modeling which says you can't exceed that amount so when the model is running the model you have exceeded sis but in actuality there was water in storage and what happened is we found in two thousand and two in two thousand and three and this is part of  testimony was in two thousand and two in two thousand and three there was going to be a project that water quality it seems is over and above the amount that have been allocated to it so the bureau said well we have plenty of water in storage we're going to make that water available not only that in two thousand and two and two thousand and three can see that i'm sorry or any question for today the new maloney's plan that interim operations plan is a plan that the bureau is using and has been using for the last several years and plans to use war in the future so that to me t well we're not going to follow our plan if there's a problem what kind of assurance do we have that that's going to happen i mean the plan is how you get things done and the plan is how you allocate the eight hundred thousand acre feet and then just say we're going to throw it out the window if we have to that's just that's just not a realistic solution of the district courts as this ignores the actual operating regime of the c b p which is consistently met the standard since ninety four and it's literally manage the b p on a day to day basis a finite plan which it sounds to me like that that you're asking for to address specifically the exact water sources for analysis and its compliance is neither practical nor necessary in who the and reallocation throughout each water year they say that we have the ways to deal with this contractor's stormwater and purchases and there isn't a record of evidence that they have used at least one of those in the past to comply  notwithstanding the modeling problem what's the problem with that but in fact they do have a plan and in fact that that plan is supposed to make provision for the water quality so that but the plan is not just the plan the plan also is part of my procedure in a process that they use and they have demonstrated they have used successfully to satisfy your concerns and i don't think that's the case i think that the operational is part of the day to day discretion in implementing the plan i think we're talking about it's like a badge of congress comes up with the badge and every year and then things go maybe the budget isn't completely followed but at least you know where at least you have a road map where you're supposed to be going and when the road map leads to the wrong place when the wrong road map leads to violations then we've got a real problem i think that the map it the however the bureau concedes that it has a legal obligation to assure that the water is not too salty in view of their concession that they have that legal obligation and the fact that there is such a legal obligation why isn't that an assurance that they will violate their land in order to provide the farmers with water that's like the salt if you asked the asking a southern state you know you are saying that the southern states in respect people's rights one hundred fifty years ago why should we trust them now and the point is if the other side says if we lock in your interests then everybody with an interest recognized in this process that they've been given priority on this now that's threatens ours and so because with right now we have standing an injury that's precisely what the plan is supposed to do it's supposed to provide for what congress locked  obligations and requirements that were existant in one nine hundred ninety two congress lock them in and the bureau isn't following that requirement or anything that prevents them from going to contractors to find extra water and in years where there might be a problem with the standard no there isn't there anything anything that prevents them from using stored water you know there isn't anything that prevents long as as long as it's there because in the previous year when they had they made their planning there was sufficient despite places why isn't that analogous to my plan is to drive from home to work in twelve minutes but there's a train going across the road  comply with the nine hundred ninety two existing obligations and at eight hundred thousand acre feet well the way you've described those legal obligations it's a legal obligation to provide pure water not of legal it's an operational plan that the bureau is using and it's day to day affairs that's that's the plan that they're utilizing but it's a plan that's destined for failure it's a fit it's a plan that doesn't comply with the legal requirements of the c v p