No. 137, Original · · · ·· IN THE SUPREME COURT OF THE …web.stanford.edu/dept/law/mvn/pdf/1-Volume_14.pdf · 10 · · Dr. Schreüder is finished, we'll be proceeding to 11

· · · · · · · · · ·· No. 137, Original·· · · ·· IN THE SUPREME COURT OF THE UNITED STATES·· · · · · · · · · VOLUME 14 OF 25 VOLUMES·· · · · · · · TRANSCRIPT OF TRIAL PROCEEDINGS··_______________________________________________________·· · · · · · · · · · · STATE OF MONTANA· · · · · · · · · · · · · · · · · · · · · Plaintiff,· · · · · · · · · · · · · ·· v.·· · · · · · · · · · · STATE OF WYOMING·· · · · · · · · · · · · · · and·· · · · · · · · ·· STATE OF NORTH DAKOTA· · · · · · · · · · · · · · · · · · · · · Defendants.·_______________________________________________________···· · · · BEFORE THE HONORABLE BARTON H. THOMPSON, JR.· · · · · · · · · · ·· Special Master· · · · · · · · · · Stanford, California···· · · · · James F. Battin United States Courthouse· · · · · · · · ·· 2601 2nd Avenue North· · · · · · · · · Billings, Montana 59101· · · · · ·· 8:37, Wednesday, November 13, 2013····· · · · · · · · · Vonni R. Bray, RPR, CRR· · · · · · · · · · · · P.O. Box 125· · · · · · · · · · · Laurel, MT 59044· · · · · · · · · · (406) 670-9533 Cell· · · · · · · · · ·· (888) 277-9372 Fax· · · · · · · · · · [email protected]··· · · ·· Proceedings recorded by machine shorthand·· Transcript produced by computer-assisted transcription·

Page 2983

· · · · · · · · · · · · APPEARANCES·1··· ··FOR PLAINTIFF STATE OF MONTANA:·2··· ·· · · · · · Mr. John B. Draper, Special Assistant AG·3·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·4·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·5·· · · · · · Telephone: (505) 986-2525 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Jeffrey J. Wechsler, Special Assistant AG·7·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·8·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·9·· · · · · · Telephone: (505) 986-2637 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Cory Swanson11·· · · · · · Deputy Attorney General· ·· · · · · · 602 Sanders12·· · · · · · P.O. Box 201401· ·· · · · · · Helena, MT 5962413·· · · · · · Telephone: (406) 444-4774 Fax: (406) 444-3549· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Ms. Anne Winfield Yates15·· · · · · · DNRC Chief Legal Counsel· ·· · · · · · 1625 Eleventh Avenue16·· · · · · · P.O. Box 201601· ·· · · · · · Helena, MT 59620-160117·· · · · · · Telephone: (406) 444-0503 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Kevin R. Peterson19·· · · · · · DNRC Legal Counsel· ·· · · · · · 1625 Eleventh Avenue20·· · · · · · P.O. Box 201601· ·· · · · · · Helena MT 59620-160121·· · · · · · Telephone: (406) 444-5785 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ··23··· ··24··· ··25·

Bray Reporting - (406) 670-9533

Page 2984

· · · · · · · · ·· APPEARANCES CONTINUED·1··· ··FOR DEFENDANT STATE OF WYOMING:·2··· ·· · · · · · Mr. James C. Kaste·3·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·4·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·5·· · · · · · Telephone: (307) 777-3535 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Chris Brown·7·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·8·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·9·· · · · · · Telephone: (307) 777-3406 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Andrew J. Kuhlmann11·· · · · · · Water & Natural Resources Division· ·· · · · · · Assistant Attorney General12·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 8200213·· · · · · · Telephone: (307) 777-3537 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ··15··· ··FOR DEFENDANT STATE OF NORTH DAKOTA:16··· ·· · · · · · Ms. Jennifer L. Verleger17·· · · · · · Assistant Attorney General· ·· · · · · · 500 North 9th Street18·· · · · · · Bismarck, ND 58501-4509· ·· · · · · · Telephone: (701) 328-3640 Fax: (701) 328-430019·· · · · · · E-mail: [email protected]· ··20··· ··21··· ··22··· ··23··· ··24··· ··25·


Page 2985

· · · · · · · · · · · · ·· INDEX·1··· ·· · · · · · · · · · · · · · · · · · · · · VOLUME· ··PAGE·2··· ··Proceedings ...............................14· · ·2987·3··Dr. Allen Offered as Expert Witness .......14· · ·3122· ··Certificate of the Court Reporter .........14· · ·3213·4··· ···5··· ·· · · · · · · · · ·· INDEX TO WITNESSES·6··· ··FOR THE PLAINTIFF:· · · · · · · · · · ··VOLUME· ··PAGE·7··· ··RICHARD ALLEN·8··· ··Direct Examination by Mr. Draper ..........14· · ·3107·9··Cross-Examination by Mr. Brown ............14· · ·3155· ··Examination by the Special Master .........14· · ·316710··Redirect Examination by Mr. Draper ........14· · ·3175· ··11··· ··ART COMPTON12··· ··Direct Examination by Mr. Swanson .........14· · ·317713··Cross-Examination by Mr. Kaste ............14· · ·3194· ··Examination by the Special Master .........14· · ·320514··Reross-Examination by Mr. Kaste ...........14· · ·3206· ··15··· ··16··· ·· · · · · · · · · ·· INDEX TO WITNESSES17··· ··FOR THE DEFENDANT:· · · · · · · · · · ··VOLUME· ··PAGE18··· ··WILLEM A. SCHREÜDER (CONT.)19··· ··Direct Examination Cont. by Mr. Brown .....14· · ·298720··Cross-Examination by Mr. Draper ...........14· · ·3043· ··Examination by the Special Master .........14· · ·308421··Recross-Examination by Mr. Draper .........14· · ·3103· ··22··· ··23··· ··24··· ··25·


Page 2986

· · · · · · · · · ·· INDEX TO EXHIBITS·1··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE·2··· ··· M008· ·Expert Report Prepared by .........14· · ·3123·3·· · · · · Richard G. Allen· ···4··· M029· ·Ref-ET: Reference .................14· · ·3153· ·· · · · · Evapotranspiration Calculation·5·· · · · · Software for FAO and ASCE· ·· · · · · Standardized Equations, University·6·· · · · · of Idaho and Richard G. Allen,· ·· · · · · Version 3.1 (2011)·7··· ··· M031· ·Crop Evapotranspiration - .........14· · ·3153·8·· · · · · Guidelines for Computing Crop· ·· · · · · Water Requirements - FAO56·9··· ··· M046· ·A Landsat-based Energy Balance ....14· · ·315310·· · · · · and Evapotranspiration Model in· ·· · · · · Western US Water Rights Regulation11·· · · · · and Planning· ··12··· M047· ·Satellite-Based Energy Balance ....14· · ·3153· ·· · · · · for Mapping Evapotranspiration13·· · · · · with Internalized Calibration· ·· · · · · (METRIC) - Model14··· ··· M048· ·Satellite-Based Energy Balance ....14· · ·315315·· · · · · for Mapping Evapotranspiration· ·· · · · · with Internalized Calibration16·· · · · · (METRIC) - Applications· ··17··· M052· ·METRIC Mapping ....................14· · ·3153· ·· · · · · Evapotranspiration at High18·· · · · · Resolution Applications Manual· ··19··· M053· ·ASCE - EWRI (2005) The ASCE .......14· · ·3153· ·· · · · · Standardized Reference20·· · · · · Evapotranspiration Equation.· ·· · · · · ASCEEWRI Standardization of21·· · · · · Reference Evapotranspiration Task· ·· · · · · Comm. Report22··· ··· M056· ·Evapotranspiration and ............14· · ·315323·· · · · · Irrigation Water Requirements· ··24··· M559· ·USGS Report .......................14· · ·3050· ··25·


WILLEM A. SCHREÜDER, PH.D. - November 13, 2013Direct Examination Cont. by Mr. Brown

Page 2987

· · · · · WEDNESDAY, NOVEMBER 13, 2013, 8:37 A.M.·1·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be·2·

·seated.·3·

· · · · · · Mr. Brown.··Continued direct examination.·4·

· · · · · · MR. BROWN:··Good morning, Your Honor.·5·

· · · · · · SPECIAL MASTER:··Actually, Mr. Draper is·6·

·standing.·7·

· · · · · · MR. DRAPER:··Your Honor, I was just wanting·8·

·to alert you, as I've discussed with Wyoming, after·9·

·Dr. Schreüder is finished, we'll be proceeding to10·

·Dr. Allen, and then with Mr. Compton following instead11·

·of the reverse order on those two witnesses because of12·

·flight arrangements.13·

· · · · · · SPECIAL MASTER:··That sounds fine.··Thank14·

·you.15·

· · · · · · MR. DRAPER:··Thank you.16·

· · · · · · SPECIAL MASTER:··Mr. Brown.17·

· · · · · · MR. BROWN:··Okay.18·

· · · · · · · · WILLEM A. SCHREÜDER (CONT.),19·

·having been first duly sworn, testified as follows:20·

· · · · · · · · DIRECT EXAMINATION CONTINUED21·

·BY MR. BROWN:22·

· · ·· Q.· ·Morning, again, Dr. Schreüder.23·

· · ·· A.· ·Morning.24·

· · ·· Q.· ·I'll try to speed up a little bit here so we25·



Page 2988

·can get you to your plane.·1·

· · · · · · SPECIAL MASTER:··What time is your plane?·2·

· · · · · · THE WITNESS:··I have to leave here no later·3·

·than noon.·4·

· · · · · · SPECIAL MASTER:··Okay.··Hopefully we will be·5·

·through by then.·6·

· · · · · · MR. BROWN:··Should be fine.·7·

·BY MR. BROWN:·8·

· · ·· Q.· ·And yesterday before we broke, I think we·9·

·were talking about your third opinion regarding the10·

·need for the model to be calibrated to base flows in11·

·order to be reliable; do you recall that?12·

· · ·· A.· ·Yes.13·

· · ·· Q.· ·If a model is calibrated only to heads, can14·

·you reliably predict impacts to streamflows?15·

· · ·· A.· ·No, Your Honor.··The scientific literature is16·

·very clear that the best choice is to actually17·

·calibrate the model directly to base flows.··The BLM18·

·model is recognized in their report, and a number of19·

·the citations that Mr. Brown included in his motion in20·

·limine speak to that exact same fact.21·

· · · · · · If you were to rely only on heads to infer22·

·fluxes, then that head calibration has to be pretty23·

·good.··Much better than what we've seen in this model.24·

· · ·· Q.· ·Do you still have Exhibit M38 in front of25·



Page 2989

·you, the 2002 technical report?·1·

· · ·· A.· ·Yes.·2·

· · ·· Q.· ·Look at page 4-1, and that's under Section 4,·3·

·which discusses development of the model; right?·4·

· · ·· A.· ·That's correct.··Yes.·5·

· · ·· Q.· ·And in the second paragraph from the top,·6·

·about in the middle, it says, "Transient calibration of·7·

·the model to measured mine water inflows, CBM well·8·

·production, river base flow, and measured drawdown in·9·

·overlying and underlying zones, as well as the stressed10·

·zone, is a particularly effective method for refining11·

·the conceptual model of the groundwater flow systems."12·

· · · · · · Did I read that right?13·

· · ·· A.· ·That's correct.··Yes.14·

· · ·· Q.· ·In your opinion, does this statement describe15·

·models in general or this BLM model in particular?16·

· · ·· A.· ·It just describes it more in a generic sense.17·

·This is not exactly what they did.18·

· · ·· Q.· ·And on what do you base that opinion?19·

· · ·· A.· ·Well, the specific one that you just read20·

·says transient calibration of model, and then it skips21·

·over to river base flow.··It infers that there was a22·

·transient calibration to river base flow, which is not23·

·what they actually did.··So this seems more like a24·

·generic description of what would be good ideas.25·



Page 2990

· · ·· Q.· ·And does Section 5.1.2 on page 5-9 of the BLM·1·

·report describe what they actually did?·2·

· · ·· A.· ·Yes.··In particular, Section 5.1.2, it·3·

·describes the steady-state calibration to Powder River·4·

·base flows, which is actually what they have done.··And·5·

·as we discussed yesterday, it wasn't actually to the·6·

·Powder River base flow, per se, but rather to the flux·7·

·to the Powder River alluvium.·8·

· · ·· Q.· ·And so how would you translate that flux into·9·

·the alluvium into Powder River -- into the Powder River10·

·surface stream?11·

· · ·· A.· ·Well, as indicated before, what we need to do12·

·is make that adjustment for evapotranspiration from13·

·groundwater.14·

· · ·· Q.· ·Does the 2002 BLM model allow you to do that?15·

· · ·· A.· ·Not directly, no.16·

· · ·· Q.· ·Assuming that the BLM model was perfectly17·

·calibrated to gains to the Powder River, does that make18·

·the model reliable for predicting depletions to the19·

·Tongue River?20·

· · ·· A.· ·No, it doesn't.··What we really need to do is21·

·to see how the Tongue River is different or similar to22·

·the Powder River.··And we should calibrate it to23·

·specifically the base flows on the Powder River if24·

·we -- sorry -- the Tongue River, if what we want to do25·



Page 2991

·is apply it to the Tongue River.·1·

· · ·· Q.· ·Would you also need additional targets or·2·

·additional data in order to generate targets in order·3·

·to do a calibration of streamflow?·4·

· · ·· A.· ·Yes, Your Honor.··If you want to calibrate to·5·

·the Tongue River base flow, you need to know what the·6·

·base flow measured in the Tongue River is.··So we need·7·

·to have additional calibration targets for the Tongue·8·

·River specifically.·9·

· · ·· Q.· ·What kind of data is that that you would10·

·need?11·

· · ·· A.· ·Well, typically what we would like to have is12·

·base flow data on the Tongue River itself.13·

· · ·· Q.· ·And is that kind of data available for the14·

·Tongue River?15·

· · ·· A.· ·Well, it hasn't been developed yet.··In16·

·principle, we could try because there are some gauges17·

·on there.··But considering the magnitude of the flow in18·

·the Tongue River, as Mr. Larson indicated, actually19·

·teasing out just the base flow component of that is20·

·very difficult.21·

· · · · · · I am aware that there has been some efforts22·

·to use other techniques other than just the gauges to23·

·do that.··So, for example, looking at doing isotope24·

·studies or looking at temperature profiles and things25·



Page 2992

·like that.··But whether that's going to work or not, we·1·

·don't know yet.··So hitting those targets would be very·2·

·difficult to do.··But we should try.·3·

· · ·· Q.· ·Let's go ahead and turn to your fifth opinion·4·

·which is stated on page 14 of your report.··There you·5·

·say, "Recharge from CBM wells is critical to the·6·

·determination in calculation of Tongue River impacts·7·

·from CBM pumping"; right?·8·

· · ·· A.· ·Correct.·9·

· · ·· Q.· ·What does "recharge" mean in this context?10·

· · ·· A.· ·We've used the term recharge or the recharge11·

·fraction of pumping or the return flows to describe the12·

·return of CBM produced water to the shallower systems13·

·through either impoundments or other mechanisms of14·

·returning it to the groundwater system.15·

· · ·· Q.· ·Could you also use the term "depercolation"16·

·in this context?17·

· · ·· A.· ·Yes.··Depercolation and recharge are sort of18·

·synonymous terms to describe water infiltrating the19·

·subsurface and returning to the water table.20·

· · ·· Q.· ·Mr. Larson talked about this yesterday, but21·

·the water that's pumped as a result of CBM production,22·

·does it return to the same formation from which it was23·

·pumped?24·

· · ·· A.· ·No.··Generally, the production is from the25·



Page 2993

·deeper layers in the model that could be layers 12 or·1·

·so, and then it gets returned to layer 1, which is the·2·

·superficial layer.·3·

· · ·· Q.· ·So when you pump the deep groundwater and·4·

·it's discharged or it recharges close to a surface·5·

·stream, what effect does it have on that surface·6·

·stream?·7·

· · ·· A.· ·Well, as we see in this case of Prairie Dog·8·

·Creek, when the water returns to that shallow system,·9·

·it would tend to migrate horizontally towards that10·

·stream and actually result in gains to that stream from11·

·groundwater.12·

· · ·· Q.· ·And I suspect this is obvious.··But what if13·

·the water is discharged directly into the stream?14·

· · ·· A.· ·Well, in that case, you would actually, of15·

·course, have a direct benefit to the stream.··But as16·

·far as the groundwater model is concerned, that's a17·

·separate analysis that neither Mr. Larson or I dealt18·

·with.··Mr. Hinckley did those calculations of the19·

·direct discharges.20·

· · ·· Q.· ·If only a fraction of the pumped water21·

·returns to the groundwater system, then ultimately,22·

·won't the CBM pumping have impacts to the streamflow?23·

· · ·· A.· ·Well, it's a matter of timing and location.24·

·Generally, because the pumping happens from the deeper25·



Page 2994

·formations, those effects would tend to propagate a·1·

·little bit slower.··Whereas, the returns, since they·2·

·occur closer to the streams both vertically and·3·

·horizontally in places, you actually have a faster·4·

·return from those surface -- or the near surface·5·

·returns.··And so very often, the returns have an effect·6·

·on the stream system faster than do the pumping.·7·

· · ·· Q.· ·What about in the specific context of the·8·

·Tongue River Basin, the subbasin?·9·

· · ·· A.· ·Well, in the Tongue River, it gets sort of10·

·interesting when we look at this isolated area.11·

·Because in that case, because you're pumping from a12·

·deeper layer that is actually connected to the larger13·

·Powder River Basin, many of those impacts actually14·

·could propagate into the Powder River Basin proper, so15·

·outside the Tongue River Basin.··Whereas, it's just due16·

·to the geometry of the Tongue River Basin, the17·

·accretions tend to be concentrated in those streams in18·

·the Tongue River Basin and then directed northwest into19·

·the Tongue system.20·

· · · · · · So you could actually have an asymmetry that21·

·pumping depletions go outside the Tongue River system22·

·whereas the accretions concentrate within the Tongue23·

·River system and, hence, give -- actually have a24·

·benefit to the Tongue River system.25·



Page 2995

· · ·· Q.· ·So to predict how those impacts would occur,·1·

·you need to have a groundwater model to do that; right?·2·

· · ·· A.· ·Yes.··Basically a groundwater model is how we·3·

·resolve those subtleties.·4·

· · ·· Q.· ·And did you evaluate the impacts of CBM·5·

·pumping to the Tongue River with the different·6·

·fractions of recharge?·7·

· · ·· A.· ·Yes.··So one of the things, obviously, that·8·

·we recognize, Mr. Larson and I both, was that that·9·

·fraction was very important.··And so I looked at10·

·different recharge fractions simulated in the 2002 BLM11·

·model.12·

· · ·· Q.· ·Is that described in Figure 12 of your13·

·report?14·

· · ·· A.· ·Yes.15·

· · ·· Q.· ·Go ahead and describe that figure for us,16·

·please.17·

· · ·· A.· ·So in Figure 12, the vertical axis is the18·

·simulated Tongue River depletions.··And the horizontal19·

·axis is time.··And the different colored lines20·

·represent different recharge fractions going from 0,21·

·15, 25, 35, 45, 40, and 75 percent of return flow.··And22·

·what I was specifically evaluating here is -- we'll23·

·talk later about the difference between the well24·

·package and drain package.··So I was using the well25·



Page 2996

·package here where the actually horizontal --·1·

·historical produced water and the original storage.·2·

·But here I was just evaluating the effect of recharged·3·

·fraction.·4·

· · · · · · And so this shows the different percentages,·5·

·how the depletions change when you use different·6·

·percentages in the model.·7·

· · · · · · SPECIAL MASTER:··I'm sorry, Mr. Brown.··Can I·8·

·just interrupt for a second?·9·

· · · · · · MR. BROWN:··Yes, sir.10·

· · · · · · SPECIAL MASTER:··So in -- so looking at11·

·Figure 12, so I understand the different recharge12·

·rates.··So could you just go over, again, as to what13·

·modifications you made in the run of the model to what14·

·Mr. Larson made?15·

· · · · · · THE WITNESS:··So in this particular case, I16·

·used the original BLM model with -- completely without17·

·any changes.18·

· · · · · · SPECIAL MASTER:··Okay.19·

· · · · · · THE WITNESS:··It may be a syntactical or a20·

·semantic difference.··But I look at this as an21·

·implication of the model.··The model is the hydraulic22·

·conductivities and so forth, so we're simply applying23·

·the model by asking it, if the pumping was this, what24·

·would the impacts be?··So I don't view that as a change25·



Page 2997

·to the model.·1·

· · · · · · I'm simply saying, here is the actual·2·

·observed pumping based on the WOC -- the Wyoming and·3·

·Montana gas boards.··This is the pumping they produce.·4·

·Let's take that water, put it directly into the model·5·

·at that level of pumping, and then see what the model·6·

·predicts.·7·

· · · · · · SPECIAL MASTER:··All right.··So, again, I·8·

·understand one of your criticisms of Mr. Larson's·9·

·testimony was that he should have used constant head10·

·cells and the actual data; is that correct?11·

· · · · · · THE WITNESS:··I don't remember the constant12·

·head cell part.13·

· · · · · · SPECIAL MASTER:··He should have used the14·

·actual data.15·

· · · · · · THE WITNESS:··If you know what the pumping16·

·is, put that pumping in the model.··Don't mess around.17·

· · · · · · SPECIAL MASTER:··So you've done that here?18·

· · · · · · THE WITNESS:··Yes.19·

· · · · · · SPECIAL MASTER:··And in addition to that,20·

·then modify the recharge rate?21·

· · · · · · THE WITNESS:··Correct.··The recharge rate22·

·goes together with the pumping.··So I just put those in23·

·there as an application of the model.24·

· · · · · · SPECIAL MASTER:··Thanks.25·



Page 2998


· · ·· Q.· ·So the black line represents 0 percent·2·

·recharge; right?·3·

· · ·· A.· ·That's correct.·4·

· · ·· Q.· ·And it looks like it peaks out somewhere·5·

·around 1.7 CFS?·6·

· · ·· A.· ·Correct.·7·

· · ·· Q.· ·And decays over time?·8·

· · ·· A.· ·Correct.··And I should qualify, this is just·9·

·Wyoming CBM.10·

· · ·· Q.· ·Okay.··What's the purple line?··Describe11·

·that.12·

· · ·· A.· ·So what you see in the purple line is if we13·

·use a 75 percent recharge rate, what the model actually14·

·shows is that accretions occur to the Tongue River15·

·system, which peaks at about 1.45 CFS accretion in16·

·2002, and then decreases over time.17·

· · ·· Q.· ·So if we wanted to look at individual years18·

·in Figure 12, it appears to me apparent that whether or19·

·not we have an accretion in a particular year, for20·

·example, 2001, 2002, 2004, 2006, all depends upon the21·

·level or the fraction of recharge that you use; right?22·

· · ·· A.· ·Yes.··It is a very significant factor in23·

·determining what the accretions or depletions are.24·

· · ·· Q.· ·Take a look at your Figure 13.··And to maybe25·



Page 2999

·preempt a question, was this using the original BLM·1·

·model storage properties and the drain package?·2·

· · ·· A.· ·Yes.··Figure 13 and Figure 12 show the same·3·

·set of results.·4·

· · ·· Q.· ·Okay.··So Figure 13 wasn't used in the drain·5·

·package; it was used in the wells?·6·


· · ·· Q.· ·Okay.··And please explain the Figure 13.·8·

· · ·· A.· ·So in Figure 13, what I did was to simply·9·

·summarize the results in Figure 12 on an annual basis10·

·for 2001, '2, '4, and '6.11·

· · ·· Q.· ·In, for example, 2004, if you take a look at12·

·the 45 percent recharge rate, it doesn't appear to13·

·match what's in Figure 13 exactly.··Can you describe14·

·that?15·

· · ·· A.· ·Well, actually, it does.··If you look at the16·

·light blue bar that reads minus 05 -- minus .054 in17·

·2004, what I actually did in Figure 13 is to compute18·

·the annual average.··So if you look at that same blue19·

·line in Figure 12, you'll see it goes from a negative20·

·value, about negative minus .2, to a plus .1 or21·

·thereabouts.··So on -- what I have in that figure is22·

·the annual average, not the end-of-year value.23·

· · ·· Q.· ·So I think you testified with regard to this,24·

·and I think it's in the model documentation.··But when25·



Page 3000

·the BLM constructed the model in 2002, they didn't know·1·

·precisely how operators would dispose of produced·2·

·water; right?·3·


· · ·· Q.· ·In the years since the 2002 work, has the BLM·5·

·refined its estimate of recharge and what happens to·6·

·the produced water?·7·

· · ·· A.· ·Yes, they have.·8·

· · ·· Q.· ·And what have they done?·9·

· · ·· A.· ·Well, in the 2009 and 2011 iterations of the10·

·model, they were actually looking more at what actually11·

·happened in the basin.··And in the modeling they did12·

·for those years, in 2009, they determined a recharge13·

·fraction of .6, so 60 percent.··And then in the most14·

·recent iteration, they used a 72 percent recharge15·

·fraction, in part based on the modeling, but in part16·

·based on other studies that has been performed within17·

·the basin.18·

· · ·· Q.· ·And were those two later iterations or19·

·discussions found in the 2009 AECOM report, which is20·

·Exhibit M37, and the 2011 impoundment study, which is21·

·Exhibit M39?22·

· · ·· A.· ·Yes, that's correct.23·

· · ·· Q.· ·Okay.··Has anybody, to your knowledge, tried24·

·to make actual measurements to estimate how much CBM25·



Page 3001

·pumping becomes recharged?·1·

· · ·· A.· ·Yes.··There's been a couple of studies that·2·

·I'm aware of.··The first one is Payne and Saffer, who·3·

·actually, in the Beaver Creek, upper Beaver Drainage,·4·

·actually did an experiment to try and determine how·5·

·much leakage there is from an impoundment.··And they·6·

·came up with a recharge fraction between 39.5 percent·7·

·and 55.7 percent.·8·

· · · · · · There was also a study done by Dr. Wheaton,·9·

·and his data actually showed that the recharge fraction10·

·is 70 percent.··But when Mr. Brown asked him about it,11·

·he said, well, overall, he thinks it's closer to12·

·50 percent.13·

· · ·· Q.· ·Do you know of any other experts with14·

·specific knowledge to this basin, what they have15·

·concluded as far as a recharge fraction?16·

· · ·· A.· ·Well, Mr. Hinckley, obviously, has a lot of17·

·specific knowledge about this basin.··And in his18·

·report, he cites somewhere between 43 percent and19·

·60 percent is the most reasonable range of recharge20·

·fractions.21·

· · ·· Q.· ·And in your opinion, what's the consensus of22·

·the recharge based on work that's been done since 2002?23·

· · ·· A.· ·My conclusion was that the consensus opinion24·

·seems to be that it's somewhere between 45 and25·



Page 3002

·60 percent.·1·

· · ·· Q.· ·And I think you already mentioned,·2·

·Mr. Larson, in his work, recognized that the recharge·3·

·fraction was important as well; right?·4·

· · ·· A.· ·Yes.·5·

· · ·· Q.· ·And what recharge fractions did he analyze?·6·

· · ·· A.· ·Well, in his report, he showed 0 percent and·7·

·25 percent.··But he also analyzed the 60 percent value·8·

·and got results remarkably similar to the ones that I·9·

·have shown.10·

· · ·· Q.· ·How do you know that he analyzed the11·

·60 percent recharge?12·

· · ·· A.· ·It was in his backup data.13·

· · ·· Q.· ·Looking at your Figure 13, is it possible for14·

·the model to tell us which recharge fraction is15·

·correct?16·

· · ·· A.· ·No, Your Honor.··As we looked at, for17·

·example, Figure 7, my Figure 7, which showed the18·

·different analyses of the calibration targets in19·

·transient, and just looking at the results we see in20·

·Figure 13, the actual changes to the system as a result21·

·of this recharge is not large enough that we can22·

·actually run the model and say, oh, we can clearly23·

·compare this to some observed head levels, for example,24·

·and say this one is right and this one is wrong.··So25·



Page 3003

·the model doesn't inform this.··This is something that·1·

·we have to have input into the model and say, this is·2·

·the recharge fraction.·3·

· · ·· Q.· ·In Mr. Larson's rebuttal report at page 12,·4·

·he suggests that the 2009 version of the BLM model·5·

·produces essentially the same streamflow depletion in·6·

·2003 using 100 percent return flows, as did the 2002·7·

·version of the model using 25 percent return flows.··Do·8·

·you recall that discussion?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·And do you know why the 2009 model reaches11·

·that result?12·

· · ·· A.· ·Yes, Your Honor.··If you actually look13·

·carefully at the results, they are not -- in the Tongue14·

·River Basin, they're actually simulating 10 percent15·

·return flow rather than 100.··And the reason why that16·

·happens is that there's a numerical flaw in that17·

·particular model that in the topmost layers, they have18·

·actually dried out the cells.19·

· · · · · · So basically, in MODFLOW, you have the20·

·concept of an active cell or a dry cell.··And in this21·

·particular instant, just the cells right along Prairie22·

·Dog Creek were active, and the rest of layer 1 dried23·

·out.··So when you return this hundred percent of the24·

·pumping, because the cells are now inactive, that water25·



Page 3004

·actually goes past Prairie Dog Creek and ends up in·1·

·layer 3.·2·

· · · · · · So in the 2009 model, there's only six·3·

·layers.··The pumping occurs in layer 5.··Prairie Dog·4·

·Creek, where most of the return flows show up, is in·5·

·layer 1.··And the return flow from that pumping,·6·

·because layer 1 has now been dried out, it's dumped·7·

·into layer 3.··So this water is sort of in limbo·8·

·somewhere between where the pumping occurs and where·9·

·the returns to layer 1 actually occur.10·

· · · · · · So, in effect, what that model is simulating,11·

·is just the small amount of water that makes it to12·

·those active cells in layer 1.··So in that particular13·

·instance, the effect of return flow rate is only14·

·10 percent.15·

· · · · · · In the rest of the Powder River Basin, it16·

·doesn't seem to make much of a difference.··But since17·

·we're looking at the Tongue, where this is obviously18·

·now making a big change, that effect of percentage is19·

·what they actually get.20·

· · · · · · To me, this is just another example of the21·

·lack of interest of the BLM folks in this area.··It22·

·doesn't make much of a difference down in the Powder23·

·River Basin.··And so I don't know that they even notice24·

·that this happened.25·



Page 3005

· · ·· Q.· ·In your opinion, are the results from the·1·

·2009 model any more reliable than the results from the·2·

·2002 model?·3·

· · ·· A.· ·No, I don't think so.·4·

· · ·· Q.· ·Do the depletions and accretions that you·5·

·illustrate in Figure 13, do they take into·6·

·consideration groundwater ET?·7·

· · ·· A.· ·No, they don't.··These are in the absence of·8·

·ET.·9·

· · ·· Q.· ·What effect would taking into consideration10·

·groundwater ET have on these results?11·

· · ·· A.· ·Well, our expectation is that the numbers12·

·would reduce.··Both the accretions and depletions would13·

·be reduced.14·

· · ·· Q.· ·Let's back up to your fourth opinion, which15·

·is on page 11 of your report.··There you say, "Pumping16·

·from CBM wells must be properly represented before17·

·reliable -- a reliable estimate can be made of pumping18·

·impacts."··And this goes to the discussion that I think19·

·you've already had a little bit today with the Special20·

·Master with regard to representing the wells in the21·

·drain package as opposed to the well package; right?22·

· · ·· A.· ·Correct, yes.23·

· · ·· Q.· ·Doesn't the 2002 model use the drain package?24·

· · ·· A.· ·Yes.··The issue, obviously, Your Honor, is25·



Page 3006

·that we're kind of trying to model human behavior in·1·

·response to economic stimuli.··So what we're trying to·2·

·do is figure out how much pumping there is going to be·3·

·from the CBM wells to produce gas.··Because that's,·4·

·after all, what they are after.·5·

· · · · · · So in 2002, they had no idea how much·6·

·production there was going to be.··And so what they·7·

·assumed was that the producers would simply pump the·8·

·water levels down to close to the bottom of the·9·

·formation and then produce gas.··And they used that as10·

·a way of estimating prospectively how much production11·

·would occur.12·

· · · · · · Well, in reality, we can now look back and13·

·say, well, this is how much pumping they actually did.14·

·And we can actually use the reported values and simply15·

·put that into a model to produce the extracted volumes.16·

·Because in order to look at the impacts of the well17·

·pumping on the streams, what really matters is what is18·

·the volume of water extracted?··Because the equations19·

·will then propagate those extracted volumes to the20·

·various places in the model and calculate stream21·

·depletions or reductions to the ET or whatever they22·

·would do.23·

· · · · · · What the operators actually do is when they24·

·want to produce gas from a well, the way that folks25·



Page 3007

·like Anadarko has described it to me, is that they pump·1·

·the water level down first rapidly to a point where gas·2·

·starts getting produced.··And if I may draw you a quick·3·

·picture -- can you clear the screen for me, please,·4·

·Mr. Brown?·5·

· · · · · · Thank you.··So if this is time and this here·6·

·is pressure measured as a head, what they would do is·7·

·they would rapidly reduce the pressure until you get·8·

·the gas production.··If you just keep the head in the·9·

·aquifer at that level, it would produce gas for a while10·

·and then stop.··So things will equilibrate.··So what11·

·you actually need to do is keep on pumping and reducing12·

·the pressure so that the gas production continues.13·

· · · · · · And depending on economic incentives and14·

·specifics about the well, like maintenance and15·

·everything else, they may follow this curve here, or16·

·they may go a little slower and get different rates of17·

·production.··But they don't really care about the18·

·pressures downhole.··What they care about is the gas19·

·production.··So what they would do is adjust their20·

·pumping rates to produce gas.··And that's really what21·

·they are interested in.22·

· · · · · · So when we make the simplification as the BLM23·

·folks did, that we'll just drop the pressure and keep24·

·it steady, that's sort of models of what would happen25·



Page 3008

·in the future.··But there is a lot more subtleties to·1·

·this that we can't actually represent in the·2·

·groundwater model.··So the best way to actually·3·

·represent this is to simply look at how much they·4·

·actually produced and not try to infer their intent and·5·

·just say, this is how much they produced.··This is how·6·

·much we'll put in the model.·7·

· · ·· Q.· ·And Mr. Larson adjusted the drain·8·

·conductances in his simulations in order to match the·9·

·production records; right?10·

· · ·· A.· ·That's correct.11·

· · ·· Q.· ·And what kind of issues does that create?12·

· · ·· A.· ·Well, the adjustments that we make, or at13·

·least Mr. Larson made, was on a basin water or14·

·watershed basis.··So what this gives you is the correct15·

·overall production or at least a close approximation of16·

·the actual production at a watershed scale but not on17·

·an individual well basis.18·

· · · · · · And the problem that that, of course, creates19·

·is that we also need to tell the model how much return20·

·flows there are.··So we have two different methods for21·

·calculating how much pumping there is and how much22·

·recharge there is.23·

· · · · · · On the watershed basis in the Tongue River24·

·Basin, there was a fairly good approximation of how25·



Page 3009

·much water was produced and how much water was·1·

·returned.··But if you actually look at it spatially,·2·

·where on an individual well basis we used the draining·3·

·package, or Mr. Larson used the drain package, to·4·

·estimate how much pumping there was for a particular·5·

·well, the amount of return flow was not assigned based·6·

·on how much flow there was in that drain cell but how·7·

·much was reported as the actual production.·8·

· · · · · · So the return flows was generated from one·9·

·data set.··The production was generated from another10·

·data set.··And if you look at it spatially, as I show11·

·in one of my figures, there's actually a spatial12·

·mismatch between where the pumping occurs and where the13·

·recharge occurs.14·

· · · · · · SPECIAL MASTER:··Are you going to look at15·

·that figure?16·

· · · · · · MR. BROWN:··Yes, right.··Yeah.17·

·BY MR. BROWN:18·

· · ·· Q.· ·Does Figure 9 in your report describe what19·

·you were just talking about?20·

· · ·· A.· ·Yes.··I'm sorry.··I couldn't remember the21·

·figure name.··That's why I didn't include it in my22·

·answer.··So you asked about this specifically23·

·yesterday, Your Honor.24·

· · · · · · So what you see in the areas that are shown25·



Page 3010

·in purple, if you calculate the pumping or the amount·1·

·of water produced from that drain cell as a fraction of·2·

·the amount of water that we put in through the recharge·3·

·package, you'll see that the recharge package is in·4·

·excess of 40 percent of the amount of water that's·5·

·modeled by the drain cells, so too much recharge, not·6·

·enough pumping in those locations.··And then in other·7·

·locations that are shown in red, for example, the drain·8·

·cells overestimate how much flow there is in that·9·

·particular cell as opposed to the amount of recharge10·

·that is assigned.11·

· · · · · · So what this does is it takes what the model12·

·actually produced from the drain package and what we13·

·told the return flow fraction was based from the14·

·reported production, and then, on average, it gives you15·

·25 percent.··But on an individual well basis, it16·

·doesn't.17·

· · · · · · SPECIAL MASTER:··Okay.··Can I interrupt here18·

·because, again, I want to make sure that I understand19·

·this.20·

· · · · · · So I understand the argument for using the21·

·actual well production.··And you couple that with using22·

·the well package rather than the drain package.··And is23·

·that because in order to use the historical, you have24·

·to use the well package?25·



Page 3011

· · · · · · THE WITNESS:··Yes.·1·

· · · · · · SPECIAL MASTER:··Why?··Could you just explain·2·

·that quickly?·3·

· · · · · · THE WITNESS:··So in MODFLOW, there are these·4·

·things called packages.··They are just different ways·5·

·of simulating inflows and outflows from the aquifer.·6·

·The drain package, as was described by Mr. Larson·7·

·yesterday, functions by taking the head in the aquifer,·8·

·subtracting that from a reference head, so you had a·9·

·head differential, and multiplying that by a10·

·conductance.··That gives you a flow volume that is a11·

·function of the head in the aquifer.12·

· · · · · · In the well package, what you are doing is13·

·you're telling the model, take out so many acre-feet.14·

·It doesn't matter what the head is; take that much out.15·

·So it's just a different way of telling the model how16·

·much water to take out explicitly or to calculate how17·

·much water is produced.18·

· · · · · · There's a number of other packages -- the19·

·river package, the ET package, and so forth -- that20·

·simulate other things.··And the name of the package21·

·derives from physical features that most resemble them.22·

·So in a well, it's assumed you turn the pump on and the23·

·pump produces a certain amount of water and you tell it24·

·how much that was.··In the drain package, you calculate25·



Page 3012

·a flow rate based on those head differentials.·1·

· · · · · · SPECIAL MASTER:··And then there is a separate·2·

·recharge package that you then use for purposes of·3·

·introducing recharge rates into the model?·4·

· · · · · · THE WITNESS:··That's correct.·5·

· · · · · · SPECIAL MASTER:··And do I understand what·6·

·your testimony is is that under Mr. Larson's model,·7·

·that although you're using the drain package for·8·

·purposes of the water extraction, you're using actual·9·

·recharge rates for purposes of the recharge package?10·

· · · · · · THE WITNESS:··That's correct, sir.11·

· · · · · · SPECIAL MASTER:··And it is that combination12·

·of using the drain package and then the actual recharge13·

·rates with the recharge package that leads to the14·

·variation in the actual percentage of recharge in15·

·various areas?16·

· · · · · · THE WITNESS:··That's correct.··And there's17·

·nothing wrong with using the recharge package.··That is18·

·actually the appropriate package to do.··Because it19·

·returns the water to the topmost active layer.··The20·

·problem is that the volumes that we're telling the21·

·models are inconsistent between the extraction and the22·

·returns.23·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.24·

·25·



Page 3013


· · ·· Q.· ·Let's just quickly go back to Figure 10.··And·2·

·I believe this figure is -- generally depicts the·3·

·distinction between the results you get with the drain·4·

·package and the well package; is that right?·5·

· · ·· A.· ·That's correct.··And, Your Honor, if you·6·

·could look at the corrected version of this figure·7·

·rather than the original, which has the correct axis·8·

·labels.·9·

· · · · · · MR. BROWN:··And just for the record, the10·

·corrected version of Figure 10 is now Exhibit W15A, so11·

·that's what we'll be referring to for Figure 10.12·

· · · · · · THE WITNESS:··Yes.··So the dark blue line13·

·shows the actual reported production.··In the upper14·

·frame, we show the Montana values.··In the lower frame15·

·we show the Wyoming values.··As Mr. Larson correctly16·

·indicated, the Montana pumping peaks at about 500017·

·acre-feet per year.··The Wyoming peaks at about 13,00018·

·acre-feet per year.··And you can see that there's a19·

·fairly complex temporal pattern to the actual20·

·production, which is a function of all of the things21·

·that I talked about earlier.··Whereas, if you actually22·

·look at what the model simulates, it uses the dark23·

·green line, assuming that you have both Montana and24·

·Wyoming pumping.25·



Page 3014

· · · · · · So if we look at Wyoming, you'll see that·1·

·there's a pretty good correspondence for the initial·2·

·years.··Then there's a deviation in, like, 2002 and '3.·3·

·And then from 2004 onwards, again, it's pretty good·4·

·correspondence between what was actually reported and·5·

·what was simulated.·6·

· · · · · · But then in the later years, in Wyoming, the·7·

·drain package simulation actually overestimates the·8·

·production in Wyoming.··And making the actual·9·

·calculations, as I recall, we were off by about10·

·50 percent in the 2002, 2003 time frame,11·

·underestimating the production.··And in the later12·

·years, we're overestimating the production by somewhere13·

·around a third.14·

· · · · · · If you look at the Montana production, you'll15·

·see that, well, the model doesn't do quite as well in16·

·that particular instance.··The -- it, again,17·

·underestimates in years like 2000, 2001, and 2002 and18·

·then overestimates the 2003, '4, '5, '6 production.19·

· · · · · · And actually, the post -- the latter years,20·

·there's better correspondence.21·

·BY MR. BROWN:22·

· · ·· Q.· ·Does it actually make a difference to predict23·

·depletions to the Tongue River?24·

· · ·· A.· ·Well, yes.··I mean, the bottom line is the25·



Page 3015

·volume of water extracted is what gets translated into·1·

·those depletions.··So we should use the most accurate·2·

·representation.·3·

· · · · · · You talked about viewing this as a type of·4·

·uncertainty.··Well, we're just introducing the·5·

·uncertainty in here.··If we know that this is reported·6·

·value, we can remove that uncertainty by just using the·7·

·reported values.·8·

· · ·· Q.· ·And is that depicted in Figure 11?·9·

· · · · · · SPECIAL MASTER:··Which?10·

· · · · · · MR. BROWN:··The distinction between -- the11·

·impacts to the Tongue River depending on which package12·

·you use.13·

· · · · · · THE WITNESS:··I'm sorry.··I was talking about14·

·the uncertainty.15·

· · · · · · SPECIAL MASTER:··It wasn't quite clear16·

·whether it was the uncertainty.17·

· · · · · · THE WITNESS:··The uncertainty isn't shown in18·

·Figure 11; that's the depletions.··And so there's too19·

·many lines on this graph.··But basically, the -- if we20·

·look at just the Wyoming impacts, if we use the CBM21·

·through simulation, the Wyoming impacts are shown as22·

·this dark blue line, which dips negative in 2001 and23·

·'2 and then rises sharply.24·

· · · · · · If we actually use the actual observed values25·



Page 3016

·in Wyoming, we get that light blue line, which stays·1·

·positive all the way and then peaks a little earlier·2·

·than the dark blue line but doesn't peak quite as high.·3·

· · · · · · SPECIAL MASTER:··Okay.··One of the problems·4·

·is that I'm slightly color deficient.··So could you·5·

·point out, just so that I'm absolutely clear, which is·6·

·the light blue line?·7·

· · · · · · THE WITNESS:··I will try to trace the light·8·

·blue line here.·9·

· · · · · · SPECIAL MASTER:··It might actually be10·

·easier -- oh, that one there.··Okay.··That's what I11·

·thought.··Great.··Thank you.12·

· · · · · · THE WITNESS:··This is what I think is the13·

·most reasonable representation.··The dark blue is what14·

·Mr. Larson has simulated using the drain package.··The15·

·dark blue being -- try not to mess this up.16·

· · · · · · SPECIAL MASTER:··The dark blue, I can tell.17·

·That's perfect.··Thanks.18·

·BY MR. BROWN:19·

· · ·· Q.· ·And briefly describe the red and the green20·

·lines for us, if you would.21·

· · ·· A.· ·So there's different ways that we can look at22·

·Montana's impacts on Wyoming.··So the red line is what23·

·Mr. Larson calculated.··It basically just looked at the24·

·total when you pump both and then subtract the Wyoming25·



Page 3017

·impacts.·1·

· · · · · · If you're actually looking at Montana by·2·

·itself, what you get is the green line, which is·3·

·essentially on top of the dark blue line.··That last·4·

·part wasn't very good.··But it falls essentially on top·5·

·of the Wyoming impacts if you draw it that way.··If you·6·

·actually use the more accurate representation, which is·7·

·just sticking it in through the well package, then you·8·

·get this orange line, which is that line.·9·

· · · · · · And so the key about that is if you look at10·

·early years, like 2001 and 2002, the impacts that11·

·Montana has on the Tongue River -- and, of course, part12·

·of the Tongue River is actually in Wyoming.··So Montana13·

·is having an impact on Wyoming -- you'll see that there14·

·is actually more of that in those early years than15·

·there is from Wyoming.16·

· · ·· Q.· ·Let's go to your sixth opinion, which I17·

·believe is on page 15 of your report.··And I believe18·

·that has to do with the storage parameters that19·

·Mr. Larson changed from the original model; is that20·

·right?21·


· · ·· Q.· ·And he spoke about that with the Special23·

·Master yesterday.··Can you just describe specifically24·

·what he changed?25·



Page 3018

· · ·· A.· ·So the deepest two layers in the 2000 model·1·

·happens to be referred to as layers 16 and 17 in·2·

·MODFLOW parlance.·3·

· · · · · · And in those layers, we see that the specific·4·

·storage that the BLM modelers have in there is actually·5·

·a couple of orders of magnitude greater, so a hundred·6·

·times greater than in the overlying formations.··And so·7·

·when we specifically asked Mr. Larson about this, he·8·

·said, well, they just looked out of line.··So he·9·

·thought that it would be more appropriate to set those10·

·values to 100 times smaller, which is then what he used11·

·in his simulations that are reflected in Figures 2 and12·

·4 in this report.13·

· · · · · · So what I did was to look at two things:14·

·Number one, I went back to the 2002 report and just15·

·made sure they just didn't put the wrong value in the16·

·model that they had intended to put something else.17·

·And, in fact, that's what they reported; they had18·

·intended to put that in there.19·

· · · · · · The second thing that I did was look at the20·

·2009 report and see, well, what kind of storage values21·

·do they have in there?··And that is reflected in --22·

· · ·· Q.· ·Table 4.2-2 of the 2009 AECOM report?23·

· · ·· A.· ·Yes.··And Mr. Larson took you to the same24·

·table yesterday to demonstrate that.··Well, in the25·



Page 3019

·latest iteration of the model, they change all kinds of·1·

·parameters including the storage parameter.·2·

· · · · · · What I wanted you to focus on, though, is·3·

·that if you look at the last column which shows the·4·

·predominant value, notice that for the lower Fort·5·

·Union, this value here, they have a value of 10 to the·6·

·minus 5.··And then for the Upper Fort Union, they have·7·

·a value of 1.25 times 10 to the minus 7.·8·

· · · · · · So what that tells me is that for whatever·9·

·reason, they still believe in this contrast between the10·

·upper and lower formations, that for whatever reason11·

·those lower layers have a storage coefficient that's a12·

·hundred times higher, approximately, than the overlying13·

·formations.14·

· · · · · · So why would that be?··Well, we would expect15·

·it to be as a result of softer rock.··And I speculated,16·

·well, maybe it's because of coals, because coals tend17·

·to be softer rock.··I don't know exactly what their18·

·motivation is.··But, clearly, they have an19·

·understanding, based on both the modeling studies they20·

·have done and their analysis of the data, that that21·

·deepest layer has a larger storage coefficient than the22·

·overlying layers.··And that's what I wanted to point23·

·out in that particular study.24·

· · ·· Q.· ·And I'm likely the only one that struggles25·



Page 3020

·with this.··But 10 to the minus 5 is bigger than 10 to·1·

·the minus 7; right?·2·

· · ·· A.· ·Yes.··This is 10 to the minus 5th power or 10·3·

·to the minus 7th power.··So however many zeros there is·4·

·between the decimal point and the one.·5·

· · ·· Q.· ·And I think Mr. Larson testified yesterday·6·

·that it wasn't only just the numbers appeared to be too·7·

·small but also that he was trying to match drawdowns,·8·

·too, didn't he?·9·

· · ·· A.· ·Yes, but I don't quite buy that.··If you10·

·again turn to my Figure 7, what I show in that is the11·

·results of using the modified storage versus the12·

·original storage.··And if we just picked the 25 percent13·

·return flow value --14·

· · · · · · SPECIAL MASTER:··Wait.··I'm sorry.··You said15·

·Figure 7.··But Figure 12 is up on the -- are you16·

·referring to Figure 7?17·

· · · · · · THE WITNESS:··I am referring to 7.18·

· · · · · · SPECIAL MASTER:··So that's calculation19·

·targets?20·

· · · · · · THE WITNESS:··That's correct, sir.21·


· · · · · · THE WITNESS:··What -- if you look at that,23·

·you'll actually see the difference between the orange24·

·and the red lines.··And it does qualitatively describe25·



Page 3021

·the behavior that Mr. Larson described.··If you have a·1·

·larger storage coefficient, you will have less·2·

·drawdown.··And smaller coefficient has great drawdowns.·3·

·But if I compare that to the actual observations, it·4·

·doesn't look like it matches a whole lot better.·5·

· · · · · · So I don't think that's a persuasive argument·6·

·that it really calibrates the model better.··The·7·

·biggest impact that it has is on the actual depletions.·8·

·Because if you have a smaller storage coefficient, then·9·

·less water is derived from storage.··And instead, that10·

·water has to be derived from some other sources, either11·

·ET salvage or reduction in streamflows.··Since this12·

·model doesn't represent ET salvage, it tends to lead to13·

·higher stream depletions.14·

· · · · · · There's also a timing factor in this that15·

·complicates it a bit.··But generally speaking, if you16·

·have a lower storage coefficient, which is what17·

·Mr. Larson changed, he made the storage coefficients18·

·lower, you're going to have greater stream depletions.19·

·BY MR. BROWN:20·

· · ·· Q.· ·Let's move on to your seventh opinion, which21·

·is in your report at page 15.··And there you indicate22·

·that by using the end-of-year depletions, Mr. Larson23·

·overstates the predicted Powder River depletions in '0424·

·and '06.25·



Page 3022

· · · · · · And let's take a look at, I guess, Figure 11.·1·

·And can you just quickly describe what you mean by --·2·

·in that opinion?·3·

· · ·· A.· ·Yes, Your Honor.··You actually asked about·4·

·this yourself.··The values that Mr. Larson reports are·5·

·the end-of-year values.··And in the period from 2002·6·

·until about 2008, the depletions are steeply rising.·7·

·So the end-of-year value is the maximum value.·8·

· · · · · · In my figure -- the one with the bar·9·

·graphs -- Figure 13, what I actually calculate is the10·

·annual average as a more representative value of what11·

·would have happened throughout the entire year.12·

· · ·· Q.· ·Let's go on to your eighth opinion, which is13·

·on page 16.··There you state the depletions from the14·

·Tongue River from CBM pumping in Wyoming should rapidly15·

·decline into the future.··Upon what do you base that16·

·opinion?17·

· · ·· A.· ·Well, I think it's probably instructive to18·

·compare, for example, Figures 10 and 11.··So Figure 1019·

·shows the pattern of water that he took out of the20·

·model, so the pumping.··Figure 11 shows the depletions21·

·that are predicted to the Tongue River.··And there22·

·seems to be a relatively quick response to Tongue River23·

·depletions in this model as opposed to when the pumping24·

·occurs.··So since we expect pumping declines to25·



Page 3023

·continue into the future, we would expect the future·1·

·depletions to rapidly diminish as well, or I should say·2·

·the alleged depletions probably.·3·

· · ·· Q.· ·Would ET salvage cause the stream impacts to·4·

·dissipate more slowly or more quickly?·5·

· · ·· A.· ·Generally speaking, if you had an additional·6·

·water source like ET salvage, they would dissipate even·7·

·quicker than what is shown in the model.·8·

· · ·· Q.· ·Let's go to your ninth opinion; this is also·9·

·on page 16 of your report.··You say Mr. Larson10·

·overestimated impacts because of where the simulated11·

·impacts occur; is that right?12·

· · ·· A.· ·Correct.13·

· · ·· Q.· ·And I think you show that in Figure 15; is14·

·that right?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·Can you describe that figure for us?17·

· · ·· A.· ·So we briefly touched on Figure 15 yesterday18·

·to talk about the depletions around that well where we19·

·actually have water levels below the groundwater as20·

·opposed to above.··But generally, the colors that are21·

·green, yellow, orange, and red, the hot colors are22·

·where there are stream depletions predicted.··And the23·

·blue, dark blue, purple colors are where accretions to24·

·the stream are predicted.25·



Page 3024

· · · · · · So just looking at this generally, on the·1·

·Tongue River, there are mostly depletions, the highest·2·

·depletions being over near Sheridan on the west side.·3·

·Then we have accretions occurring on Prairie Dog Creek·4·

·prior to Dutch Creek.··And then on Dutch Creek, we have·5·

·sort of a mix of accretions and depletions.·6·

· · · · · · So what I was after here is that since·7·

·Mr. Book's concern is the flows at the state line,·8·

·we're talking about accretions that occur right above·9·

·the state line.··And so since that happens right before10·

·the point where we're interested in them, there11·

·wouldn't be much of a transit loss between where they12·

·occur as opposed to the state line point.··Whereas, if13·

·you look at Sheridan, the depletion that occurs by14·

·Sheridan, there's actually a lot of evapotranspiration15·

·that occurs between there and the state line.16·

· · · · · · So to the extent that there would be a17·

·buffering of those transit losses, if you will, to18·

·those points, ignoring those transit losses actually19·

·works in Montana's favor and against Wyoming because it20·

·would overstate those depletions and accretions.21·

· · ·· Q.· ·So let's take a look at Figure 14.··And does22·

·that show the modeled impacts to the Tongue River,23·

·Prairie Dog, and Squirrel Creek for the other recharge24·

·fractions?25·



Page 3025

· · ·· A.· ·Yes.··This is instructive to answer the·1·

·question that you asked yesterday about, why is it that·2·

·a 25 percent change in the accretions cause 50 percent·3·

·change in the response?··And so what I have shown here·4·

·in different colors is where these actually occur.·5·

·Now, the ones that don't really change are the light·6·

·blue and the green, which is the lower Tongue, which is·7·

·the Tongue River in Montana, and Squirrel Creek, which·8·

·is, of course, also in Montana.··So those are those two·9·

·lines.10·

· · · · · · And it doesn't matter what the return flow11·

·fraction is that we model.··They look very similar.12·

·And that's what you would expect because the return13·

·flows from Wyoming CBM happens in Wyoming.··It doesn't14·

·have much of an impact on the streams that are in15·

·Montana.16·

· · · · · · The biggest response is to Prairie Dog Creek.17·

·Prairie Dog Creek is shown as this red line that's18·

·below the axis.··And as you can see, if you have19·

·25 percent return, there is a gain of maybe .5 CFS at20·

·the peak.··If you have 35 percent, it's about .75.··And21·

·as you look at higher and higher return flow fractions,22·

·more and more water shows up in Prairie Dog Creek.23·

· · · · · · Well, Prairie Dog Creek goes right through24·

·the middle of the well field.··And so those return25·



Page 3026

·flows, of course, is going to show up in Prairie Dog·1·

·Creek.··So that's where most of the accretions occur.·2·

·And that's what makes the biggest overall impact to the·3·

·Tongue River depletions.·4·

· · · · · · The dark blue line is always above the line.·5·

·So that goes down by Sheridan.··And in that area, we·6·

·mostly see depletions to the Tongue River from CBM·7·

·pumping simulated.··As you have more and more return·8·

·flows, you'll see that that impact gets muted because,·9·

·of course, there are also return flows in that area.10·

·But the biggest change in the response is to Prairie11·

·Dog Creek because it's right in the middle of the well12·

·field.··And, therefore, there is a nonlinear13·

·relationship between the accretions that occur and the14·

·return flow fraction.15·

· · ·· Q.· ·And I think let's go to Figure 16.··And does16·

·this demonstrate what you're talking about with regard17·

·to the importance of Prairie Dog Creek and return18·

·flows?19·

· · ·· A.· ·Yes.··So, Your Honor, in this particular20·

·figure, if you look at the area north of Sheridan21·

·before the state line, you'll see that there's lots of22·

·purple and dark blue colors in that area.··So this is23·

·where the return flows from that well field in -- it's24·

·located in that area, is actually leading to25·



Page 3027

·accretions.··If you look over here on the west side·1·

·over there, you'll notice that, generally speaking, we·2·

·have yellow and orange colors in that area.··So you've·3·

·got drawdowns in that area.··That's where these·4·

·depletions are being shown to the upper portion of the·5·

·Tongue River.·6·

· · · · · · The key here, of course, is that in modeling·7·

·Prairie Dog Creek, they modeled it only to Dutch Creek·8·

·and then modeled Dutch Creek for the remainder.··As I·9·

·showed you in Figure 4, from the aerial photographs,10·

·you can very clearly see the path that Squirrel11·

·Creek -- I mean, Prairie Dog Creek follows down to the12·

·southwest, which would generally be through this area.13·

·And since we've got water level rises in that area, had14·

·the BLM actually modeled Squirrel Creek -- I keep on15·

·saying Squirrel -- Prairie Dog Creek in this area --16·

· · · · · · SPECIAL MASTER:··They are similar.17·

· · · · · · THE WITNESS:··-- we would have seen some18·

·greater accretions.··We can't quantify how much without19·

·adopting those to the model, but we at least know that20·

·there's an underestimate of the amount of accretions21·

·that would have occurred.22·

·BY MR. BROWN:23·

· · ·· Q.· ·Okay.··Let's take a look at Figure 17.··Did24·

·you evaluate the impacts of the CBM wells in Wyoming25·



Page 3028

·that are outside of the Tongue River watershed?·1·

· · ·· A.· ·Yes, Your Honor.··The question we wanted to·2·

·answer is:··Do the wells outside the Tongue River Basin·3·

·even matter?··And so that's, obviously, where the bulk·4·

·of the pumping is.··Something like 88 percent of the·5·

·pumping is actually in that southern area.··But some of·6·

·it is like 150 miles away from the Tongue River.··So·7·

·the obvious question is, seriously, do these have an·8·

·impact on the Tongue River?·9·

· · · · · · And so what I evaluated was just the pumping10·

·from those wells on the Tongue River, assuming the11·

·25 percent return flow fraction because it's not12·

·terribly important in that area.··And you can see13·

·there's a dark blue line that hardly rises above the14·

·axis, as opposed to the red line, which is basically15·

·looking at wells throughout the entire basin in16·

·Wyoming.17·

· · · · · · And so what you can see from this figure is18·

·that most of the wells in the basin have really19·

·effectively no impact on the Tongue River.··The rise of20·

·that blue line above the axis is maybe 10 acre-feet.21·

·And this isn't considering the offsets as a result of22·

·ET.23·

· · · · · · So if we consider ET, we're talking24·

·single-digit acre-feet numbers in terms of the impact25·



Page 3029

·of the wells outside the Tongue River watershed.·1·

· · ·· Q.· ·Okay.··I think that brings us to your final·2·

·opinion, No. 10.··I think that's on page 18 of your·3·

·report.··And through your testimony and your report,·4·

·you've stated that you don't believe the 2002 BLM model·5·

·can reliably predict depletions to the Tongue River and·6·

·its tributaries; right?·7·


· · ·· Q.· ·Nevertheless, you use the 2002 model to·9·

·estimate impacts from Wyoming's CBM pumping on the10·

·Tongue River for 2001, 2002, 2004, and 2006; right?11·

· · ·· A.· ·Correct.12·

· · ·· Q.· ·And is that depicted, or the results at least13·

·depicted, in Table 1 of your report?14·

· · ·· A.· ·Yes.15·

· · ·· Q.· ·Can you describe that for us?16·

· · ·· A.· ·So, Your Honor, what we're trying to do here17·

·is to say, well, the calibration issues we can't fix,18·

·short of recalibrating the model.··But we can try to19·

·adjust for two of the factors that we've discussed.20·

·One is evapotranspiration.··And one is the return flow21·

·fraction.22·

· · · · · · So in order to adjust for evapotranspiration,23·

·what I did was to take the values that I had shown in24·

·Figure 13, the bar graph, and try to make an estimate25·



Page 3030

·of how the impacts to the Tongue River alluvium·1·

·predicted by the model would partition to·2·

·evapotranspiration and stream depletions.·3·

· · · · · · The reason for going through that discussion·4·

·yesterday coming up with an estimate of 10,000·5·

·acre-feet as the amount of evapotranspiration for·6·

·groundwater in the Tongue River alluvium was so that we·7·

·have an estimate of the amount of ET from groundwater·8·

·that occurs, the total amount.·9·

· · · · · · And then we use the model's estimate of the10·

·discharge of 4.7 CFS or 3400 acre-feet to say, well, if11·

·this is the discharge, can we estimate how this will12·

·partition between ET and stream leakage?··And if you --13·

·or stream gains, I should say.··If you then ratio those14·

·two, basically, it's a 3 to 1 ratio in terms of the15·

·amount of ET and the stream discharge that is predicted16·

·in the model.17·

· · · · · · So what I said was, well, if I have to make18·

·an estimate of how -- what the impact to the Tongue19·

·River itself actually would be as opposed to just this20·

·general discharge, I'm just going to ratio it in that21·

·same ratio as the first order of approximation.22·

· · · · · · Based on my experience in places like the23·

·Republican River and the San Luis Valley, that's not a24·

·bad first order approximation to make.··And so25·



Page 3031

·basically the values shown in that bar graph, I simply·1·

·divided by four to give you the values that are shown·2·

·in this table.·3·

· · · · · · The other thing that is shown in this·4·

·table -- and, of course, this is for 2001, '2, '4, and·5·

·'6.··The other thing that is shown in this table is the·6·

·fraction of recharge.··So what I've shown here as a·7·

·column labeled Hinckley/Schreüder, is the amount of or·8·

·the range of recharge that Mr. Hinckley and I estimated·9·

·as the consensus opinion or what we view as consensus10·

·opinion in the recharge, so from 60 percent and11·

·50 percent.··And then for reference, if we were to12·

·correct, for example, the use of the drain package13·

·versus the well package, we then assume Mr. Larson's14·

·25 percent return flow fraction, what the predicted15·

·impacts would be.16·

· · · · · · And, again, these are annual values, not the17·

·end-of-year values.··So this is my attempt to18·

·demonstrate to you what the uncertainty in the overall19·

·results are.··So if I just look at what I believe to be20·

·a reasonable range of the recharge fractions, they21·

·basically go from 60 percent to 45 percent and give you22·

·stream depletions on the Tongue River that range in23·

·2001, '2, and '4, from minus 70 to minus 42, a negative24·

·value actually being an accretion model rather than a25·



Page 3032

·depletion, 140 to minus 64 in 2002, and then 113 to·1·

·minus 10 in 2004.·2·

· · · · · · Then in 2006 is an -- the only time that we·3·

·actually see a depletion to the Tongue River.··And in·4·

·that case, it goes from minus 50 to plus 38.·5·

· · · · · · If, on the other hand, you find Mr. Larson's·6·

·reasoning compelling, if you were to compare that to a·7·

·25 percent return flow fraction, you get numbers that·8·

·range from 4 acre-feet to 158 acre-feet.·9·

· · · · · · SPECIAL MASTER:··Can I interrupt just so I10·

·understand this table entirely?··So have you made the11·

·ET adjustments, then, to all three columns?12·

· · · · · · THE WITNESS:··Yes.13·

· · · · · · SPECIAL MASTER:··Okay.··And in addition to14·

·that, all three columns, again, not only the15·

·Hinckley/Schreüder column, but also the Larson column,16·

·are now using the well package using the actual pumping17·

·data?18·

· · · · · · THE WITNESS:··Correct.19·

· · · · · · SPECIAL MASTER:··And then what actually20·

·varies, then, between the three columns is the recharge21·

·rate that you're assuming?22·

· · · · · · THE WITNESS:··Yes.23·

· · · · · · SPECIAL MASTER:··Are there any other24·

·differences in the three columns other than the return25·



Page 3033

·rate?·1·

· · · · · · THE WITNESS:··No.··And I also used the·2·

·original storage.··I didn't use Mr. Larson's·3·

·alternative storage in all of these consistently.·4·

· · · · · · SPECIAL MASTER:··Okay.··So, again, if I were·5·

·to compare the model that you used for purposes of·6·

·these three columns with the modeling that Mr. Larson·7·

·did, what I would find is that both you and Mr. Larson·8·

·started out using the 2002 BLM model?·9·

· · · · · · THE WITNESS:··Yes.10·

· · · · · · SPECIAL MASTER:··But that, number one, on11·

·this table you did not change the storage coefficients?12·

· · · · · · THE WITNESS:··Correct.13·

· · · · · · SPECIAL MASTER:··Second of all, you use the14·

·well package with the actual historical pumping data?15·

· · · · · · THE WITNESS:··Yes.16·

· · · · · · SPECIAL MASTER:··And then third of all, you17·

·made the ET calculation that you describe here assuming18·

·basically a proportionate partition?19·

· · · · · · THE WITNESS:··Yes.··And just to clarify, I20·

·think Mr. Larson would agree that the actual -- whether21·

·we use the original storage or the alternate storage22·

·value, in these years, it doesn't make much of a23·

·difference.··It's perhaps a few acre-feet.··I don't24·

·know exactly how much.25·



Page 3034

· · · · · · But that's not an important difference.·1·

·Those really have only a difference when you look out·2·

·into the future.·3·

· · · · · · SPECIAL MASTER:··So if you actually look at·4·

·the changes that you made, then the ones that make a·5·

·significant difference between Mr. Larson's original·6·

·results and what you see here is, number one, the·7·

·estimation of ET?·8·

· · · · · · THE WITNESS:··Yes, which is a factor of 4.·9·

· · · · · · SPECIAL MASTER:··Right.··On the ET, what it10·

·basically does is that it reduces both depletions and11·

·accretions?12·

· · · · · · THE WITNESS:··Yes.··It's just straight divide13·

·the values by 4.14·

· · · · · · SPECIAL MASTER:··Okay.··And then the well15·

·package effect?16·

· · · · · · THE WITNESS:··The well package effect17·

·actually changes the sign.··So if you go back to18·

·Figure 11, you'll -- the dark blue and the light blue19·

·is using the well package versus the drain package.··So20·

·if you look at 2001, for example, Mr. Larson actually21·

·predicts an accretion.··But I think there should22·

·actually be a depletion here.··It's not a very large23·

·value, but because he underestimated those early24·

·pumpings, he was conservative in -- he didn't put25·



Page 3035

·enough pumping in the model, so there should actually·1·

·be a small depletion in that year, assuming 25 percent.·2·

·Of course, if you change the recharge fraction, that·3·

·becomes an accretion again.·4·

· · · · · · SPECIAL MASTER:··But in that particular case,·5·

·the sign changes in favor of depletion rather than·6·

·accretion?··Is that what you're saying?·7·

· · · · · · THE WITNESS:··Depends on what you mean by "in·8·

·favor."··It's worse for Wyoming.·9·

· · · · · · SPECIAL MASTER:··Whereas, the recharge10·

·differences, if you go to 45 percent and 60 percent,11·

·then that actually, for these particular years, makes12·

·it more favorable for Wyoming because what you're doing13·

·is returning that water faster than the depletion14·

·effect?15·

· · · · · · THE WITNESS:··That's correct.··Yes.16·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.17·

·BY MR. BROWN:18·

· · ·· Q.· ·And that's because that's the more accurate19·

·way to do that; is that right?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·At page 14 in Mr. Larson's rebuttal report,22·

·he estimates base flow for the Tongue River and its23·

·tributaries in Wyoming to be between 40 and 50 CFS; do24·

·you recall that discussion in your report?25·



Page 3036

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·Do you agree with that estimate with regard·2·

·to your -- I think you made the estimate with regard to·3·

·your ET salvage discussion?·4·

· · ·· A.· ·Yes.··That number just doesn't make any·5·

·sense, Your Honor.··First of all, when we want to·6·

·compare the ET with the stream gains, we're looking at·7·

·just between the gauge at Acme, or actually where Goose·8·

·Creek comes in at Acme and basically the Tongue River·9·

·Reservoir.··So we're just looking at that part that the10·

·model actually simulates.··And in that area, at least,11·

·the model prediction is 4.7 CFS.12·

· · · · · · Whereas, Mr. Larson's analysis, it13·

·encompassed a much larger area, an area that goes way14·

·up into the mountains.··And so you would have much15·

·larger gains because it covers an area much further to16·

·the west with much higher gains than that that was17·

·modeled.··So it's not an apples-to-apples comparison18·

·between what's actually happening in the model in that19·

·particular location and the actual partitioning that we20·

·want to make.··We need to make sure that that's an21·

·apples-to-apples comparison.22·

· · · · · · The second thing is that 50 CFS can just not23·

·work in this model.··If I can refer you to Figure 3 in24·

·my report, what that shows is the water budget for the25·



Page 3037

·entire model.··And if you look at that dark green bar·1·

·above the zero line, what that shows is that the amount·2·

·of recharge from precipitation, which is the inflow to·3·

·the model, is about 37 CFS.··So this is not just the·4·

·Tongue River but the entire Powder River Basin, all·5·

·5 million acres of it.·6·

· · · · · · And so the recharge from precipitation over·7·

·that entire area is only 37 CFS.··If you want to have a·8·

·discharge of 50 CFS up there by the Powder, you have to·9·

·have a recharge somewhere to supply that water.··And in10·

·this model, there isn't that much water in the entire11·

·Powder River Basin.12·

· · · · · · So it just doesn't make sense in the sense of13·

·what we know about this particular basin, that there14·

·could be that much discharge from groundwater because15·

·there isn't that much recharge.··So that number just16·

·doesn't make any sense.17·

· · ·· Q.· ·Just to clear up one thing, and I've put18·

·up -- what figure is that -- Figure 4 for you to take a19·

·look at, just to describe where Mr. Larson's analysis20·

·incorporated water outside of the BLM model domain.21·

·And so -- and I'm just going to mark on here.22·

· · · · · · It takes into consideration water coming from23·

·the area west of where the Tongue River is; is that24·

·right?25·



Page 3038

· · ·· A.· ·Well, where it's represented in the·1·

·groundwater model, yes.·2·

· · ·· Q.· ·And just to clarify, the Tongue River gauge·3·

·that he used is above Dayton on the Tongue River;·4·

·right?·5·

· · ·· A.· ·Correct.··The difference that he made was·6·

·from the gauge here at Decker.··So it doesn't cover the·7·

·same area on the lower end.··And then the Dayton gauge·8·

·would be off the map here by about -- but the Dayton·9·

·gauge would probably be somewhere out here.··But the10·

·catchment area itself would actually extend even higher11·

·up into the mountains, so it's just not an12·

·apples-to-apples comparison.13·

· · ·· Q.· ·What is the mass balance error for the 200214·

·BLM model?15·

· · ·· A.· ·As I recall, it's about 400 cubic meters per16·

·day, which is, when you analyze that, turns out to be17·

·about 100 acre-feet per year.18·

· · ·· Q.· ·And what does that mass balance error in the19·

·model represent?20·

· · ·· A.· ·So we use an interpretive scheme to solve the21·

·groundwater model equation.··So there's a lot of math22·

·behind it.··So we're solving the flow equations by23·

·taking a guess at the solution, making some24·

·corrections, and keep on until the change in the heads25·



Page 3039

·become fairly small.·1·

· · · · · · In order to know whether we did enough, we·2·

·calculate what's called the mass balance error.··So we·3·

·add up all of the inflows and subtract out all of the·4·

·outflows, and you look at what the change of the·5·

·storage is.··And those inflows minus the outflows·6·

·should match the change in storage.··Well, in a·7·

·numerical solution, it never does perfectly.··But we·8·

·refer to that as the mass balance error.·9·

· · · · · · So you can think of it as water that the10·

·model either creates or destroys just by its solution11·

·procedure.··And in this particular instance, that turns12·

·out to be somewhere around 400 cubic meters per day13·

·fairly consistently throughout the simulation period.14·

·So we can use that as sort of a lower level or a noise15·

·floor.··So that if you predict values less than that,16·

·you really shouldn't trust those results.··You have to17·

·do something in your solution scheme to improve that.18·

· · ·· Q.· ·So just to wrap that up, what does that mean19·

·in context of the values that you've represented in20·

·Table 1 of your report?21·

· · ·· A.· ·Well, so, that hundred acre-foot per year22·

·starts to approach the kind of numbers that we're23·

·getting in these simulations.··So we're pretty much at24·

·the predictive level of accuracy of this model purely25·



Page 3040

·based on the numerics of solving the problem.·1·

· · · · · · SPECIAL MASTER:··So, again, can I just·2·

·interrupt for a second?··In a sense you say that the·3·

·absolute mass balance error in the model is about·4·

·400 cubic meters per day in the simulations Mr. Larson·5·

·performed.··So is the mass balance error, then,·6·

·calculated based on particular simulations that you·7·

·run, or is it based on the model itself?·8·

· · · · · · THE WITNESS:··The model itself actually·9·

·calculates this as sort of like an internal consistency10·

·check.··And it tells you what the mass balance error is11·

·for every time stamp, and it also accumulates it over12·

·time.13·

· · · · · · SPECIAL MASTER:··And does it -- does that14·

·mass balance error then change depending on, for15·

·example, the degree of calibration that you run?16·

· · · · · · THE WITNESS:··No.··No.··This is something17·

·totally different.··So you can have a mass balance18·

·error of zero and still be poorly calibrated and vice19·

·versa.··You can have a perfectly calibrated model, but20·

·you can have a fairly large mass balance error.··This21·

·simply measures the -- how well you do the numerical22·

·part of it.··So if you can think of in terms of just23·

·doing a set of calculations.··Did you carry enough24·

·significant digits that at the end you basically -- you25·



Page 3041

·know, everything cancels out?··Or did those rounding·1·

·errors that you introduced by not carrying enough·2·

·significant digits result in a big error in the bottom?·3·

· · · · · · SPECIAL MASTER:··So, again, just for clarity,·4·

·when you said in the first sentence the average·5·

·absolute mass balance error is about 400 cubic meters·6·

·per day in the simulations Mr. Larson performed using·7·

·the original storage parameters, would then the average·8·

·absolute mass balance error in the model also be·9·

·400 cubic meters per day in the simulations that you10·

·ran using the different parameters and assumptions in11·

·Table 1?12·

· · · · · · THE WITNESS:··Yes.··That mass balance error13·

·didn't change very much because I didn't try to improve14·

·the numerics.··I was simply rewriting the model with15·

·those same things.··So my simulations have a similar16·

·mass balance error, yes.17·

· · · · · · SPECIAL MASTER:··Thanks.18·

·BY MR. BROWN:19·

· · ·· Q.· ·Yesterday the Special Master and Mr. Larson20·

·were discussing the uncertainty that is inherent in21·

·groundwater models, I guess.··Does that mass balance22·

·error tell you anything about the uncertainty in this23·

·model?24·

· · ·· A.· ·Yes.··It's one of the things that contributes25·



Page 3042

·to the uncertainty.··It certainly shows you that just·1·

·to the extent that there's even these, what we really·2·

·refer to as round of errors in the model, that there is·3·

·a lower floor to the kinds of numbers that you can·4·

·extract from this model completely separate from·5·

·uncertainty and, for example, the calibration, the·6·

·uncertainty in what the recharge fraction is and so·7·

·forth.·8·

· · ·· Q.· ·And on an annual basis, how much flow is the·9·

·hundred acre-feet per year?10·

· · ·· A.· ·It's about 62 gallons per minute, which is11·

·about how much you get out of a garden hose.12·

· · · · · · MR. BROWN:··That's all I have.13·

· · · · · · SPECIAL MASTER:··Thank you.··So this strikes14·

·me as a good time for the morning break.··So why don't15·

·we plan to come back at five after the hour.16·

· · · · · · · · · · · (Recess taken 9:53 to 10:0917·

· · · · · · · · · · · a.m., November 13, 2013)18·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.··Everyone19·

·can be seated.20·

· · · · · · So, Mr. Draper, are you doing the cross?21·

· · · · · · MR. DRAPER:··Yes.22·


·24·

·25·


Cross-Examination by Mr. DraperWILLEM A. SCHREÜDER, PH.D. - November 13, 2013

Page 3043

· · · · · · · · · ·· CROSS-EXAMINATION·1·

·BY MR. DRAPER:·2·

· · ·· Q.· ·Good morning, Dr. Schreüder.·3·

· · ·· A.· ·Good morning, Mr. Draper.·4·

· · ·· Q.· ·Nice to see you again.·5·

· · ·· A.· ·Likewise.·6·

· · ·· Q.· ·Doctor, we looked yesterday, during your·7·

·direct testimony, at your qualifications.··I'd like to·8·

·turn to your résumé, which is attached to your expert·9·

·report.10·

· · · · · · On page 2 of your résumé, you provide your11·

·educational background; correct?12·

· · ·· A.· ·Yes.13·

· · ·· Q.· ·And your initial degrees were in mathematics14·

·and computer science; correct?15·

· · ·· A.· ·No.··That's actually not correct.··Your16·

·Honor, what I list here is kind of what I majored in.17·

·And instead of the usual two majors -- or the major is18·

·sort of an American academic concept.··But I took to19·

·the third year level, which is like majoring in a20·

·subject, all five of the ones listed, physics and21·

·chemistry primarily, and then mathematics, applied22·

·mathematics, and computer science.23·

· · ·· Q.· ·And when you went on to your master's and24·

·Ph.D., you were concentrating on applied mathematics,25·



Page 3044

·weren't you?·1·


· · ·· Q.· ·So up to that point in your educational·3·

·career, you had not received any degrees in geology or·4·

·hydrology; is that right?·5·

· · ·· A.· ·No.··I took those courses at a later time.·6·

· · ·· Q.· ·And then as part of your Ph.D. work.··You did·7·

·a thesis on airflow; is that right?·8·

· · ·· A.· ·For my first Ph.D.··And for my first master's·9·

·degree was about turbulent airflow, yes.10·

· · ·· Q.· ·And in your selected publications, I noticed11·

·the first time that you published, as indicated by the12·

·ones that you've selected, was the 1994 proceedings13·

·in -- with respect to the Arkansas River Basin; isn't14·

·that right?15·

· · ·· A.· ·You're referring to things having to do with16·

·hydrology and similar subjects?17·

· · ·· Q.· ·Yes.18·

· · ·· A.· ·Yes.··That was the first publication that I19·

·list that had to do specifically with hydrology,20·

·groundwater flow, those kinds of things.21·

· · ·· Q.· ·And later you earned a second Ph.D. in22·

·parallel computer systems; isn't that right?23·

· · ·· A.· ·Yeah.··I think the more accurate way of24·

·saying it, it was in the computer science department,25·



Page 3045

·and it was about applying parallel computer techniques·1·

·to groundwater modeling.·2·

· · ·· Q.· ·So you've never received a degree in·3·

·hydrology; isn't that right?·4·

· · ·· A.· ·No.··Your Honor, the courses that I took in·5·

·hydrology and geology I took as interest.··I didn't do·6·

·it in order to earn credits towards a degree program.·7·

· · ·· Q.· ·Are you a certified professional hydrologist?·8·

· · ·· A.· ·No.·9·

· · ·· Q.· ·Are you a member of the American Institute of10·

·Hydrology?11·

· · ·· A.· ·No.12·

· · ·· Q.· ·I'd like to turn to the issue of calibration,13·

·which you raised in your direct testimony.··You would14·

·agree, wouldn't you, Doctor, that there's a lot more to15·

·model reliability than just how close the numbers are16·

·between predicted and reported?17·

· · ·· A.· ·Well, yeah, there's more to model reliability18·

·than just the level of calibration, yes.··That's19·

·correct.20·

· · ·· Q.· ·And I think you've testified that you can21·

·have a perfectly calibrated model and still get the22·

·wrong answer; isn't that right?23·

· · ·· A.· ·Depending on the specific application, that24·

·might actually be the case, yes.25·



Page 3046

· · · · · · MR. DRAPER:··Your Honor, may I approach the·1·

·witness?·2·

· · · · · · SPECIAL MASTER:··You may.·3·


· · ·· Q.· ·Doctor, we have labeled as Exhibit M559 a·5·

·USGS report; do you recognize this document?·6·

· · ·· A.· ·Yes, I have seen it before.·7·

· · ·· Q.· ·Have you reviewed it?·8·

· · ·· A.· ·Not recently that I can recall, no.·9·

· · ·· Q.· ·You're aware that it was cited in the motion10·

·that was filed with respect to Mr. Larson's testimony11·

·by your client; isn't that right?12·

· · · · · · MR. BROWN:··I object to that, Your Honor.13·

·This particular document wasn't previously marked as an14·

·exhibit or provided to us in Montana's exhibit list.15·

· · · · · · SPECIAL MASTER:··Mr. Draper?16·

· · · · · · MR. DRAPER:··That's true, Your Honor.··But we17·

·have had where we're planning our own witnesses and18·

·providing exhibits, we've been providing that.··That19·

·rule does not apply to cross-examination exhibits.20·

·There has been -- we have done that as we can to try to21·

·provide those.··But it's not a requirement.22·

· · · · · · MR. BROWN:··Well, I don't think it's on the23·

·overall exhibit list.··At least, I'm not seeing it on24·

·mine.··Not that it wasn't just identified for use with25·



Page 3047

·Dr. Schreüder; it wasn't identified for use in this·1·

·trial.·2·

· · · · · · MR. DRAPER:··Well, it -- that's very true,·3·

·Your Honor.··But that list is not meant to cover·4·

·cross-examination exhibits.·5·

· · · · · · MR. BROWN:··If I recall correctly, I believe·6·

·the pretrial order describes that if you fail to·7·

·identify an exhibit, it won't be presentable at trial.·8·

· · · · · · MR. DRAPER:··My recollection is that you did·9·

·the normal thing and said that that list does not apply10·

·to cross-examination exhibits, Your Honor.11·

· · · · · · SPECIAL MASTER:··I don't remember saying12·

·that.··And I do not have the pretrial order in front of13·

·me.··It's upstairs, I think.··Hold on.··Why don't we go14·

·off the record for a moment.15·

· · · · · · · · · · · (Discussion held off the16·

· · · · · · · · · · · record.)17·

· · · · · · MR. DRAPER:··Your Honor, Mr. Wechsler has18·

·just handed me a copy of it.··It's Case Management19·

·Order No. 11, and it's page 4.20·

· · · · · · SPECIAL MASTER:··So let's go back on the21·

·record.··And, actually, I have a copy of Case22·

·Management Order No. 11.··And the second full paragraph23·

·says, "Absent good cause shown and excluding exhibits24·

·offered solely for impeachment, no exhibit shall be25·



Page 3048

·received in evidence at the trial which was not marked·1·

·and provided as required herein."·2·

· · · · · · MR. BROWN:··Okay.··So the objection would be·3·

·as long as it's not offered.·4·

· · · · · · SPECIAL MASTER:··I'm sorry.··Say that again.·5·

· · · · · · MR. BROWN:··So long as it's not offered, it·6·

·can be used as impeachment, but not in evidence.·7·

· · · · · · MR. DRAPER:··We would certainly offer it into·8·

·evidence, Your Honor.··We're going to refer to it.··And·9·

·this -- the language you just quoted obviously10·

·contemplates that.11·

· · · · · · SPECIAL MASTER:··So what I would -- you know,12·

·and, again, we're not -- you know, two or three things:13·

·Number one, we're not bound by the Federal Rules of14·

·Evidence.··But at the same time, I think it's also15·

·important that we stay as closely aligned as possible16·

·to the pretrial order, so then in particular this Case17·

·Management Order No. 11.18·

· · · · · · So I think for these purposes, you can19·

·certainly use it for purposes of impeaching the20·

·witness.··And I would say to the degree that there are21·

·particular passages that you're using for impeachment22·

·purposes, that I will permit those passages to come in23·

·for impeachment.24·

· · · · · · But what I won't permit in this particular25·



Page 3049

·case is reference later on to a portion of this·1·

·particular document that's not being used to impeach·2·

·this particular witness's credibility.·3·

· · · · · · MR. DRAPER:··Very good, Your Honor.··And I·4·

·would note also that this was provided to us by·5·

·Wyoming.··It was attached as an exhibit or appended to·6·

·that motion that they filed on Mr. Larson's testimony.·7·

· · · · · · SPECIAL MASTER:··I understand entirely.·8·

·So -- but, again, what I don't want to get into is a·9·

·situation where exhibits come in and are then used for10·

·totally different purposes.··Given that in this11·

·particular case, unless it was marked as a Wyoming12·

·exhibit -- and I assume it wasn't -- that it's coming13·

·in outside of the order itself.14·

· · · · · · MR. DRAPER:··Well, I think it's coming in15·

·consistent with your pretrial order.16·

· · · · · · SPECIAL MASTER:··Right.17·

· · · · · · MR. DRAPER:··And certainly no surprise to18·

·Wyoming.··It's a document type that the witness relies19·

·on and presumably advised the state on in filing that20·

·motion.··And it's also consistent with the provision21·

·that we made in our exhibits.··And I think Wyoming may22·

·have done the same thing, that we referenced23·

·attachments to pleadings.24·

· · · · · · SPECIAL MASTER:··Yeah.··My guess is it isn't25·



Page 3050

·an issue unless there's something in this document·1·

·that's going to totally surprise me.··My guess is the·2·

·only reason you're going to refer to this is to try to·3·

·impeach Dr. Schreüder and in the process support·4·

·Mr. Larson's testimony.·5·

· · · · · · MR. DRAPER:··That is correct, Your Honor.·6·

· · · · · · SPECIAL MASTER:··Okay.··So you can proceed.·7·

· · · · · · It will be admitted for limited purposes of·8·

·impeachment.·9·

· · · · · · · · · · · (Exhibit M559 admitted.)10·

·BY MR. DRAPER:11·

· · ·· Q.· ·All right, Doctor.··You've seen this report12·

·before?13·

· · ·· A.· ·Yeah, like I indicated, I didn't actually14·

·rely on this for the purposes of my report.··But I have15·

·seen it in the past.16·

· · ·· Q.· ·And you're aware that Wyoming relied on it in17·

·the -- its pleadings in this case regarding this18·

·testimony about CBM; correct?19·

· · ·· A.· ·I think I was.20·

· · ·· Q.· ·Let me ask you to turn to page 23.··You see21·

·that this is the section of the report that has a22·

·heading on the left-hand column Advocacy of Calculation23·

·for Intended Use of Model Results?24·

· · ·· A.· ·Yes.25·



Page 3051

· · ·· Q.· ·In the right-hand column, do you see the·1·

·second full paragraph that starts "thus" and continues,·2·

·"Thus, the evaluation of the adequacy of the·3·

·calibration of a model should be based more on the·4·

·insight of the investigators and the appropriateness of·5·

·the conceptual model rather than the exact value of the·6·

·various measures of goodness of fit."·7·

· · · · · · Do you see that statement, Doctor?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·And you don't disagree with that statement,10·

·do you?11·

· · ·· A.· ·I don't agree -- disagree with the statement12·

·as stated here.··But I think that statement is not to13·

·your advantage.··Because I think that in this14·

·particular instance, that was not followed at all.15·

· · ·· Q.· ·Now, the appropriateness of the conceptual16·

·model mentioned in that statement, that's a hydrologic17·

·issue, isn't it?18·

· · ·· A.· ·Well, it depends on what you mean by19·

·"hydrologic issue."··To me, one of the important20·

·concepts of the conceptual model would be, for example,21·

·is it important to consider evapotranspiration?22·

·Because if the purpose of the model is to look at23·

·depletions to streams and you understand that24·

·evapotranspiration has a very important effect on those25·



Page 3052

·stream depletions, the conceptual model should include·1·

·the fact that evapotranspiration is a really important·2·

·issue.·3·

· · · · · · So in -- I would say that this is a·4·

·demonstration that the conceptual model, as Mr. Larson·5·

·applied this model, is very different than the·6·

·conceptual model that the BLM modelers in the 2002·7·

·report had in mind.·8·

· · · · · · So I'm not sure if I'm asking you a question·9·

·if this is a hydrologic issue or not because I'm not10·

·sure exactly what you mean by a hydrologic issue.··But11·

·I would certainly submit that ET is a huge component of12·

·this.··So whether you consider that hydrologic or not,13·

·I don't know.14·

· · ·· Q.· ·Well, consumption of groundwater by15·

·evapotranspiration is a hydrologic process, isn't it?16·

· · ·· A.· ·I think a lot of plant biologists would17·

·probably disagree with you.18·

· · ·· Q.· ·It's certainly not a purely mathematical19·

·process, is it?20·

· · ·· A.· ·Depends on your view of the world,21·

·Mr. Draper.··If your view is that the mathematical22·

·equations that represent this -- especially as it23·

·applies to groundwater modeling, there's certainly a24·

·significant amount of mathematical components to it,25·



Page 3053

·yes.·1·

· · ·· Q.· ·Now, you've used models that are uncalibrated·2·

·to determine streamflow depletions, haven't you?·3·

· · ·· A.· ·I don't think I'd refer to them as models.··I·4·

·think Mr. Larson yesterday referred to, for example,·5·

·what we call the Glover equation as a model, which·6·

·really isn't so much a model as an analytical solution·7·

·to the flow equations that we often apply.·8·

· · · · · · So what I have done in a number of cases in·9·

·Colorado, where we're looking at depletions of alluvial10·

·wells to streams, we often just apply the Glover11·

·equation.··And the Glover equation doesn't tell you how12·

·much the stream depletions are.··They just tell you the13·

·delay between when the wells pump and when the effects14·

·hit the stream.··But they essentially assume, number15·

·one, a fully penetrating stream so that all of the16·

·water supplied to that well comes from either17·

·groundwater storage or from the stream.18·

· · · · · · And it has various simplifying assumptions,19·

·like, it's an infinite homogeneous isotropic aquifer,20·

·and so forth.21·

· · · · · · So in cases where you have a well fairly22·

·close to the stream, maybe within half a mile or23·

·something like that, in an alluvium, we often apply24·

·that in Colorado.25·



Page 3054

· · · · · · And so the answer is yes, I have used the·1·

·Glover equation in some instances to estimate those·2·

·stream depletions.··In cases where, oh, more complex·3·

·system of behavior is not an issue, we're just trying·4·

·to look at timing.·5·

· · ·· Q.· ·And the application of the Glover model is·6·

·something that allows you to determine the amount of·7·

·acre-feet of depletion, isn't it?·8·

· · ·· A.· ·Yeah.··In Colorado, because of the·9·

·nontributaries data, basically what you use that for is10·

·to estimate what -- how you have to add water back to11·

·the stream so that you can mitigate injurious depletion12·

·to senior water rights users.13·

· · ·· Q.· ·Doctor, you've questioned the reliability of14·

·the BLM model in this case; isn't that right?15·

· · ·· A.· ·No.··I think that's a mischaracterization of16·

·my testimony, Your Honor.17·

· · · · · · For the purposes that the BLM model applies18·

·that for the EIS, I think it was adequate for those19·

·purposes.··My criticism is of Mr. Larson using that20·

·model, to specifically predict impacts to the Tongue21·

·River Basin.··And that's the reliability I'm22·

·questioning.23·

· · ·· Q.· ·You've stated in your deposition that your24·

·definition of re -- whether a model is reliable or not25·



Page 3055

·is whether you can, in good faith, tell the trier of·1·

·fact that you have confidence in that model; isn't that·2·

·right?·3·

· · ·· A.· ·Well, yes, Your Honor.··That's my definition·4·

·of reliability.··Is there something that I can stand up·5·

·and say, yes, this number that I'm telling you is the·6·

·number that you should believe?··That's my definition·7·

·of reliability.··Of course, my criteria for applying·8·

·that is more complex than just that, but that's what I·9·

·mean by reliable.10·

· · ·· Q.· ·So ultimately, it's a subjective test, how11·

·you feel about the model?12·

· · ·· A.· ·Yeah.··It's not subjective in the sense of13·

·being completely arbitrary.··But it's based on a14·

·scientific evaluation of, does the conceptual model15·

·capture the effective behavior of the system?··Is the16·

·model adequately calibrated?··Is the overall behavior17·

·of the system properly represented, and so forth?··So I18·

·think the answer is yes.19·

· · ·· Q.· ·Thank you, Doctor.··Now, you have not20·

·submitted a model in this case to assess the impacts of21·

·coalbed methane pumping on the Tongue River, have you?22·

· · ·· A.· ·That's true.23·

· · ·· Q.· ·So you're here simply criticizing the BLM24·

·model as applied by Mr. Larson?25·



Page 3056

· · ·· A.· ·I don't think that's fair, Your Honor.··As·1·

·you can see in my opinion 10, I at least try to go as·2·

·far as I can to give you an idea of what the range of·3·

·values are if we correct some of the most egregious·4·

·problems with the model.·5·

· · · · · · And the upshot of all of that is that after·6·

·you try to -- well, I did my best to make·7·

·accommodations for those things that we came up with,·8·

·numbers that are fairly small.··So in the end, my·9·

·overarching conclusion is that these values are10·

·essentially indistinguishable from zero, and if we can11·

·use the legal term, that these impacts are de minimus.12·

·That's sort of my bottom line conclusion.13·

· · · · · · So I don't think it's fair for Mr. Draper to14·

·simply characterize this as I'm just throwing rocks.15·

· · ·· Q.· ·Now, Doctor, let me ask you to turn to page16·

·15 of your report, please.··On page 15, you have your17·

·opinion No. 6; correct?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·And that is the one you title, "Mr. Larson20·

·inappropriately changed the model aquifer parameter21·

·established by the BLM modelers"; correct?22·


· · ·· Q.· ·And in the process of making your point here,24·

·in the second-to-last paragraph in that section, you25·



Page 3057

·make the point in the last sentence, "However, when·1·

·dealing with soft rock, such as coal, the·2·

·compressibility of the rock can be much greater."·3·

· · · · · · How is that statement applicable to your·4·

·criticism?·5·

· · ·· A.· ·Well, Your Honor, I was just looking for an·6·

·explanation of why would it be both in the 2009 model·7·

·and in the 2002 model that lower layers have so much·8·

·higher compressibility?··Now, if you look at the·9·

·equation that I show there, this is basically the10·

·accepted equation for calculating specific storage.11·

·It's the compressibility of the rock plus the porosity12·

·times the compressibility of the water.13·

· · · · · · Now, the compressibility of the water really14·

·doesn't change because of the formation change.15·

·Porosity obviously changes.··And the compressibility of16·

·the rock changes.17·

· · · · · · So why would the rock in those lower two18·

·formations be different?··Well, because the rock is19·

·more compressible.··I don't know exactly why that is.20·

·What I was doing here is speculating that, well, maybe21·

·there's more coal in those rocks, which would make it22·

·more compressible.··But as has been pointed out, well,23·

·maybe there isn't all that much coal in the formation.24·

·So maybe that explanation is wrong.25·



Page 3058

· · · · · · Regardless of what the reason is, the BLM·1·

·folks believe that that rock is more compressible, and,·2·

·therefore, they used a higher storage coefficient.·3·

· · ·· Q.· ·But the formations we're talking about here·4·

·are not coal bearing formations, are they?·5·

· · ·· A.· ·Well, there are some coals in them.··But it's·6·

·not the major coal bearing seam.··So perhaps that·7·

·explanation is not the exact explanation, no.·8·

· · ·· Q.· ·Let me ask you to turn to Exhibit M38.·9·

·That's the 2002 BLM report that you referred to.··And10·

·look with me at page 4-34.11·

· · ·· A.· ·I'm there.12·

· · ·· Q.· ·Do you see on page 4-34 there's a Table 4-36?13·

· · ·· A.· ·Correct.14·

· · ·· Q.· ·And this table lists the model layers,15·

·doesn't it?16·

· · ·· A.· ·That's true, yes.17·

· · ·· Q.· ·And if we look down that list, there are 1718·

·different model layers in this model; correct?19·

· · ·· A.· ·Correct.20·

· · ·· Q.· ·And as you go down through those layers from21·

·the surface down, down to the deeper formation, you go22·

·through the Upper Fort Union coal units, don't you?23·

· · ·· A.· ·Yes.··And because these folks were24·

·particularly interested in the geology, the mining, and25·



Page 3059

·so forth here, they actually split between layers 8 and·1·

·layers 14 numerous high coal areas that is often being·2·

·mined down in the Gillette area.··So they actually·3·

·have, you know, 1, 2, 3, and 4 of the Upper Fort Union·4·

·coal, which is the most productive areas of coal·5·

·mining, yes.··And in those areas, the specific storage·6·

·is 10 to the minus 6, which is --·7·

· · ·· Q.· ·Let me ask you about that in a second, if I·8·

·may.··So you go down through those layers, and you --·9·

·you find below the Fort Union coal bearing units the10·

·layers that Mr. Larson addressed, layers 16 and 17;11·

·correct?12·


· · ·· Q.· ·And those are not listed as coal bearing14·

·layers, are they?15·

· · ·· A.· ·Well, only layers 8, 10, 12, and 14 are16·

·explicitly called out as coal units.17·

· · ·· Q.· ·So we're not dealing in 16 -- layers 16 and18·

·17 with anything that was called out as a coal bearing19·

·unit by the BLM modelers?20·

· · ·· A.· ·No.··And in particular, Your Honor, what they21·

·are interested in here is these coal layers are22·

·obviously almost all coal.··So what they were trying to23·

·do here is have a very fine vertical discretization24·

·of --25·



Page 3060

· · ·· Q.· ·Doctor, if I may slow you down.··If the·1·

·Master wants to have a further explanation on separate·2·

·subjects, I'm sure he can ask you that.·3·

· · · · · · I have a few other things I need to ask you·4·

·in line with what I'm addressing.·5·

· · ·· A.· ·I understood, and I know we're pressed for·6·

·time.··Sorry.·7·

· · ·· Q.· ·Thank you.··Now, the model was changed as it·8·

·identified in the documentation from 2009, which is·9·

·Exhibit M37; isn't that right?10·

· · ·· A.· ·Yeah.··I don't have a copy of that here.··But11·

·I think you're right.12·

· · ·· Q.· ·Let me see if I can provide you a copy.13·

· · · · · · MR. BROWN:··I have one, John, if you want.14·

· · · · · · MR. DRAPER:··Your Honor, if I may provide15·

·this copy?16·

· · · · · · SPECIAL MASTER:··You may.17·


· · ·· Q.· ·Exhibit M37, we've just provided you a copy19·

·of, has in it page 4-26, which has the table that you20·

·were referring to earlier.··I guess you didn't have a21·

·copy of this, but you were referring to it in your22·

·direct testimony?23·

· · ·· A.· ·That's correct.··We had it on the screen.24·

· · ·· Q.· ·Now, this Table 4.2-2 shows the smaller25·



Page 3061

·number of layers that the model was converted to in·1·

·2009; correct?·2·

· · ·· A.· ·That is true, yes.·3·

· · ·· Q.· ·And we can see that model layer 6 in this·4·

·version of the model, that corresponds to layers 16 and·5·

·17 in the original; correct?·6·

· · ·· A.· ·Well, we can't tell it from this table.··But·7·

·it is correct, Your Honor, that layer 6 in Table 4-2 is·8·

·layer 16 and 17 in Table 4-6.·9·

· · ·· Q.· ·Now, the values used for the specific storage10·

·for that layer No. 6 are shown as 1 times 10 to the11·

·minus 5; correct?12·


· · ·· Q.· ·And comparing that to the values shown in the14·

·previous table we were just looking at, which was on15·

·page 4-34 of Exhibit M38, these values in the 200916·

·version are actually reduced from the values that were17·

·used in the 2002 version; is that right?18·

· · ·· A.· ·Yes.··Your Honor, we established this19·

·yesterday with Mr. Larson's testimony.··They are lower.20·

· · ·· Q.· ·And you can see that by comparing the columns21·

·in Table 4-6 on page 4-34 of M38 and comparing those to22·

·the table on page 4-26 of Exhibit M37; correct?23·


· · ·· Q.· ·So the BLM modelers, when they updated the25·



Page 3062

·model in 2009, were reducing the storage coefficients·1·

·just as Mr. Larson did; is that right?·2·

· · ·· A.· ·They reduced it, but not at all as Mr. Larson·3·

·did.··Your Honor, the important distinction to see here·4·

·is that when the BLM modelers revised the model in·5·

·2009, made all kinds of changes to the model.··They·6·

·changed the storage coefficient, they changed the·7·

·hydraulic conductivities, they changed the layering,·8·

·they changed the number of different values.·9·

· · · · · · My objection is not to the fact that these10·

·values necessarily change between one model and the11·

·next.··It's just, you can't just cherry pick one value12·

·from another model and stick that into this model and13·

·say, this is the justification for why I didn't change14·

·that.··That's my objection, Mr. Draper.15·

· · ·· Q.· ·But it is true that the BLM modelers, who are16·

·not involved in this litigation, were making those17·

·changes with respect to the values that you have18·

·criticized in Mr. Larson's work?19·

· · ·· A.· ·Yes, Mr. Draper.··But you also won't accept20·

·that they put in a 60 percent return flow fraction or21·

·72 percent return flow fraction in those later models.22·

·You cannot just cherry pick the values you like from23·

·one model and stick it in another.24·

· · ·· Q.· ·And they actually, when they were making25·



Page 3063

·these conversions, also reduced the storage·1·

·coefficients in the coal bearing units as well?·2·

· · ·· A.· ·That's correct.··That's why I pointed out·3·

·that the ratio between that deepest layer and the upper·4·

·layers was actually retained between the 2002 model and·5·

·the 2009 model.··Which to me is significant, that that·6·

·ratio was what Mr. Larson changed.··And that's part of·7·

·my objection to his change.·8·

· · ·· Q.· ·And so the -- these what you called soft·9·

·units were being reduced by the BLM modelers to lower10·

·values of storage coefficient; is that right?11·

· · ·· A.· ·Yes, Your Honor.··I probably used an12·

·inarticulate phrase in my original report.··I should13·

·have said more compressible rocks.··And I probably14·

·shouldn't have called it coal because I think the15·

·evidence suggests that it's not coal.··But it is more16·

·compressible.17·

· · ·· Q.· ·Now, you've also criticized the BLM model for18·

·not having an ET salvage function in this; correct?19·

· · ·· A.· ·Yes.20·

· · ·· Q.· ·Now, not all models have an ET salvage21·

·function; isn't that right?22·

· · ·· A.· ·No.··As I indicated yesterday, for example,23·

·in the Eastern Snake Plain Aquifer, we didn't expressly24·

·model ET from groundwater using that ET to depth to25·



Page 3064

·water relationship.·1·

· · ·· Q.· ·And the Glover-Balmer model that we spoke of·2·

·earlier, that doesn't have an ET function in it, does·3·

·it?·4·

· · ·· A.· ·No.··In Colorado, we're prohibited from·5·

·taking ET salvage into consideration when we look at·6·

·the impacts of wells to streams for, you know, legal·7·

·purposes.··There's something called the Shelton Farms·8·

·case that excludes that from consideration.··So very·9·

·often, when you make these new applications, you're10·

·required to explicitly exclude evapotranspiration, even11·

·when you know it exists.12·

· · ·· Q.· ·So that's excluded in Colorado because of the13·

·Shelton Farms decision by the Colorado Supreme Court?14·

· · ·· A.· ·Yes.··They -- well, let me not say what the15·

·Supreme Court was thinking.··But the specific --16·

· · ·· Q.· ·Thank you.17·

· · ·· A.· ·-- decision in that case is what is usually18·

·cited as the reason why we can't use or consider19·

·evapotranspiration.20·

· · ·· Q.· ·And that rule was also enacted into the21·

·Colorado Water Court after the Shelton Farms decision,22·

·wasn't it?23·

· · ·· A.· ·I'm not sure I follow that question.··What24·

·are you asking?25·



Page 3065

· · ·· Q.· ·That rule that you're speaking of that·1·

·derived from the Shelton Farms decision was also·2·

·enacted in the Colorado statute after that decision;·3·

·isn't that right?·4·

· · ·· A.· ·I don't think it ever became a statute.··I·5·

·think it just became sort of accepted that you can't·6·

·create a new water right by removing plants and then·7·

·trying to claim the evapotranspiration from that·8·

·reduction for a -- as a new water right.·9·

· · ·· Q.· ·Now, you're also familiar with the model10·

·that's used in the Arkansas River Basin in Colorado,11·

·the model that has been referred to as the12·

·Hydrologic-Institutional model?13·

· · ·· A.· ·Yes.··I wouldn't call myself an expert in it,14·

·but I'm aware of that model, yes.15·

· · ·· Q.· ·And I noted on your list of publications that16·

·you and Dr. Sharma and I think another person had made17·

·a presentation regarding that simulation?18·

· · ·· A.· ·No, that's actually not correct.19·

·Specifically what I was referring to there is in that20·

·particular instance, Colorado --21·

· · · · · · SPECIAL MASTER:··I'm sorry.··You're saying22·

·referring to in which instance?23·

· · · · · · THE WITNESS:··That paper that Mr. Draper was24·

·referring to, the 1994 one about simulations in the25·



Page 3066

·Arkansas.··Let me find the exact reference.··Actually·1·

·was referring to -- so the specific citation is Cole,·2·

·Sharma, and Schreüder, 1994, A Modern, Refined·3·

·Application of groundwater Flow Model to the Arkansas·4·

·River Basin, was actually referring to a groundwater·5·

·model that Colorado had developed in that particular·6·

·case in order to evaluate the relationship between well·7·

·pumping along the Arkansas River and the Arkansas·8·

·itself.··That was what that was referring to, not the·9·

·H-I model.10·


· · ·· Q.· ·And the Colorado model was not used in that12·

·case, was it?13·

· · ·· A.· ·Yes, it was used in that case.14·

· · ·· Q.· ·It was ultimately dropped by Colorado?15·

· · ·· A.· ·Colorado elected to go with the H-I model.16·

· · ·· Q.· ·And the H-I model doesn't have an ET salvage17·

·function in it, does it?18·

· · ·· A.· ·I don't remember if it does or not.··I19·

·haven't looked at it in a while, so I don't remember.20·

· · ·· Q.· ·ET salvage, just to be clear, has to do with21·

·the change in ET; in other words, consumption of22·

·groundwater with changing groundwater levels; correct?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·It's not the absolute values; it's the25·



Page 3067

·difference in evapotranspiration of groundwater under·1·

·two different conditions?·2·

· · ·· A.· ·Well, the absolute value actually is·3·

·important.··Because the only thing we can see in all of·4·

·these model applications is what actually historically·5·

·happened.··So what we typically have to look at is this·6·

·is the amount of evapotranspiration that has been·7·

·historically observed.··And then what we use the·8·

·groundwater model for is to evaluate, well, if·9·

·something was different, if this well hadn't pumped or10·

·whatever other condition hadn't happened, how much11·

·evapotranspiration would have occurred in that12·

·instance?13·

· · · · · · So the absolute amount, obviously, is14·

·important because that's what you use to validate the15·

·calculations that you're making with the model that16·

·you're building.··So it -- the absolute values are17·

·important as well.18·

· · · · · · And while you're thinking, Mr. Draper, I19·

·would add that the Colorado model that we were talking20·

·about in the Arkansas application did have ET salvage21·

·in it.22·


· · ·· Q.· ·And that's my point.··The one that was24·

·adopted by the court did not.25·



Page 3068

· · ·· A.· ·Let me give a more honest answer.··Colorado·1·

·elected to go with the H-I model for many reasons.·2·

· · ·· Q.· ·And the one that was adopted by the court did·3·

·not have the ET salvage function in it, did it?·4·

· · ·· A.· ·Again, that's your testimony, Mr. Draper.··I·5·

·don't remember if it does or not.··If you're telling me·6·

·it doesn't, I presume you're citing it correctly.·7·

· · ·· Q.· ·Thank you.··Now, you testified yesterday with·8·

·respect to the work that had been done in the San Luis·9·

·Valley by Phil Emery with respect to the consumption of10·

·groundwater by ET?11·

· · ·· A.· ·Yes, we talked about a number of instances.12·

·Which one specifically are you talking about?··The 197313·

·work, or the work we did in 1990?14·

· · ·· Q.· ·I believe you testified that you worked with15·

·Mr. Emery to create new curves in 1991.16·

· · ·· A.· ·That's correct, yes.17·

· · ·· Q.· ·Now, those -- the result of that work was not18·

·the subject of a published paper at that time, was it?19·

· · ·· A.· ·No.··That was tested -- the outcome was20·

·basically a new curve that we recommended for inclusion21·

·in the State's model.··And so that was then the subject22·

·the AWDI tried, the case that I had referred to as23·

·American Development, Inc., which was in 1991.24·

· · · · · · You also see that most of the publications25·



Page 3069

·reference his testimony at trial and not a specific·1·

·paper.·2·

· · ·· Q.· ·So it was his testimony in a water court·3·

·trial?·4·

· · ·· A.· ·That's correct, yes.·5·

· · · · · · SPECIAL MASTER:··Mr. Draper, at some point·6·

·within probably the next five or ten minutes, we should·7·

·take a morning break, but I'll leave it up to you as to·8·

·when in that period.·9·

· · · · · · MR. DRAPER:··This would be fine.10·

· · · · · · SPECIAL MASTER:··Great.··Then why don't we11·

·take our second morning break for ten minutes at this12·

·point.13·


· · · · · · · · · · · (Recess taken 10:54 to 11:0615·

· · · · · · · · · · · a.m., November 13, 2013)16·

· · · · · · SPECIAL MASTER:··Everyone can be seated.17·

· · · · · · Mr. Draper.18·

· · · · · · MR. DRAPER:··Thank you, Your Honor.19·

· · · · · · SPECIAL MASTER:··We're going to finish this20·

·morning.··We're going to get you out of here.21·

· · · · · · THE WITNESS:··Thank you, Your Honor.22·

· · · · · · MR. DRAPER:··Yes, Dr. Schreüder, and I were23·

·just agreeing that was going to be the case.24·




Page 3070


· · ·· Q.· ·Doctor, I have provided you, I think, a·2·

·legible copy of Exhibit M41 there at the witness stand.·3·

·Do you have that?·4·

· · ·· A.· ·I do.·5·

· · ·· Q.· ·Is this one of the exhibits you testified to·6·

·on your direct?·7·

· · ·· A.· ·Don't remember that I mentioned it.··But it·8·

·is one of the ones that I referenced, yes.·9·

· · ·· Q.· ·And this paper assesses the work by10·

·Mr. Emery, doesn't it?11·

· · ·· A.· ·It's one of the things that are considered.12·

·Specifically this is the long-term water drawdown13·

·effects caused by the Closed Basin Project that's being14·

·discussed in this paper.15·

· · ·· Q.· ·And if we turn over to page 31, noted at the16·

·top of each page -- there's a page 31, has Montana17·

·Bates No. 21398.··Can you find that page?18·

· · ·· A.· ·I have it, yes.19·

· · ·· Q.· ·It's on this page that you have discussion of20·

·the two Emery curves that you referred to during your21·

·testimony; correct?22·


· · ·· Q.· ·And, in fact, the graph on that page,24·

·Figure 7, identifies the Emery curves of 1970 and 199125·



Page 3071

·that you referred to; correct?·1·

· · ·· A.· ·Correct.··Yes.·2·

· · ·· Q.· ·And the shape of that curve is much different·3·

·from 1970 to 1991, isn't it?·4·

· · ·· A.· ·Yes.··That was the correction we felt was·5·

·necessary to apply.·6·

· · ·· Q.· ·And I think you testified that you·7·

·participated in the development of the 1991 curve?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·And the reference in this paper is to Emery10·

·1991, which appears a couple pages later in the11·

·references as Mr. Emery's testimony in the water court12·

·case that you referred to; correct?13·

· · ·· A.· ·Correct.··It's identified as 86CW46.··But I14·

·just refer to that as AWDI.15·

· · ·· Q.· ·And this study included the one that's16·

·reported on Exhibit M41, and that included actual field17·

·work; correct?18·

· · ·· A.· ·Yes.··David Stannard, who is a USGS19·

·geologist, did some of the work in 1985.··And then he,20·

·with the others, did some field work in 2004.21·

· · ·· Q.· ·May I ask you to turn to the front page of22·

·the document, first page of Exhibit M41?··On that page23·

·there is an abstract?24·

· · ·· A.· ·The first page?25·



Page 3072

· · ·· Q.· ·Yes.·1·

· · ·· A.· ·Sorry, yes.·2·

· · ·· Q.· ·You see the abstract there?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·If you count up from the bottom of the·5·

·abstract five lines, you'll see a sentence beginning on·6·

·the right-hand side with the words "while our results·7·

·corroborate"; do you see that?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·Would you read slowly the -- that sentence10·

·and the following sentence down to the end of the11·

·abstract for us, please?12·

· · ·· A.· ·"While our results corroborate the generally13·

·observed negative core relation between ET rates and14·

·the water table depth, they demonstrate that specific15·

·models to estimate ET as a function of water table16·

·depth, if not verified, may be prone to large errors."17·

· · ·· Q.· ·And the next sentence.18·

· · ·· A.· ·"Both the water table drawdown and the19·

·vegetation change are continuing 20 years after the20·

·drawdown began, and it is unclear how site ET rates and21·

·processes will differ after the water table has22·

·stabilized and vegetation has adjusted to the new site23·

·hydrologic conditions."24·

· · ·· Q.· ·So that part of the abstract is indicating a25·



Page 3073

·good deal of uncertainty with respect to how the ET·1·

·salvage function may work; wouldn't you agree?·2·

· · ·· A.· ·Ask that question again.··I'm not sure I·3·

·agree with what you just said.·4·

· · · · · · MR. DRAPER:··Can the court reporter read that·5·

·back for us?·6·

· · · · · · · · · · · (The record was read as·7·

· · · · · · · · · · · requested.)·8·

· · · · · · THE WITNESS:··No, I don't think we can go·9·

·there.··Basically, if you look at that Figure 7 that10·

·you referred to me earlier, it actually shows that the11·

·amount of ET salvage in this curve was actually12·

·confirmed.··I think what the statement in the abstract13·

·simply refers to is what I testified to yesterday, is14·

·that there's a lot more to ET than just doing the depth15·

·to water.16·

· · · · · · There are other things that are important.17·

·And as was indicated, if there's actually a change in18·

·the vegetation over a long-term -- so that's the key19·

·problem; this is long-term change.··We're talking about20·

·20 years or so.··It could actually be a progression to21·

·different plant types.22·

· · · · · · First, in the Powder River Basin or the23·

·Tongue River Basin, we're talking about very24·

·short-term, maybe a couple, three years responses.··And25·



Page 3074

·those responses don't permit time for the vegetation to·1·

·change substantially.·2·

· · · · · · But as far as the abstract is concerned, I·3·

·think they raised a valid point.·4·


· · ·· Q.· ·This work that's reported on here is in the·6·

·San Luis Valley in Colorado; correct?·7·


· · ·· Q.· ·And because of the differences that you just·9·

·mentioned, the other factors, applying that function in10·

·a different location may not occur according to the11·

·curves developed for this particular location; isn't12·

·that right?13·

· · ·· A.· ·It depends on how finely you want to parse14·

·that.··For example, a lot of this information actually15·

·is derived from Winnemucca, Nevada.··So there is a lot16·

·of commonality between different areas.17·

· · · · · · But the key is that in arid areas, and I18·

·think certainly northern Wyoming, southern Montana19·

·would classify as arid, there's a lot of commonality to20·

·what we observe in the San Luis Valley.··But I would21·

·agree with you that, well, there may be some subtle22·

·differences between the various areas.23·

· · ·· Q.· ·And it was not claimed either in this paper24·

·or under Emery, that the specific curves developed here25·



Page 3075

·were applicable directly elsewhere; isn't that right?·1·

· · ·· A.· ·I don't think Mr. Emery and these gentlemen·2·

·made that claim.··But a lot of other people made that·3·

·claim and used this data in other locations.·4·

· · ·· Q.· ·Let me ask you to turn to page 32 of the same·5·

·exhibit, M41.··This is the page that in the lower part·6·

·of the left-hand column has the heading Conclusions.·7·

·You see that?·8·

· · ·· A.· ·Yes.··Oh, I just noticed they actually·9·

·acknowledged me in this paper.··Spelled my name wrong,10·

·but...11·

· · · · · · Sorry, Mr. Draper.12·

· · ·· Q.· ·No, we've worked very hard on that.··We've13·

·got it down.14·

· · · · · · I'd like to direct your attention, and the15·

·Court's, to the first couple of sentences under16·

·Conclusions.··Would you read those for us, please,17·

·again, slowly?18·

· · ·· A.· ·"During our 19-year study period, the water19·

·table dropped from an annual mean of .92 to 2.5 meters20·

·below the ground surface, and resulted in decreases in21·

·32 percent in ET, and 62 percent in ETg."22·

· · ·· Q.· ·And the next sentence.23·

· · ·· A.· ·"While this reduction in ETg is large, it is24·

·considerably less than would have -- than would be25·



Page 3076

·predicted using the ET/water depth -- table depth·1·

·curves that had been developed for our study area."·2·

·Citing Emery 1970 and Emery 1991.·3·

· · ·· Q.· ·Thank you.··Isn't it the result of this study·4·

·that even the Emery 1991 curve was not found to be·5·

·reliable?·6·

· · ·· A.· ·Well, that's what that sentence says.··But·7·

·that's not what Figure 7 shows.·8·

· · ·· Q.· ·Figure 7 simply shows the curves; right?·9·

· · ·· A.· ·No.··It has two data points on it.10·

· · ·· Q.· ·Two data points?11·

· · ·· A.· ·Yes.··It has the pre-drawdown and the12·

·post-drawdown data points, if you look at those.··The13·

·amount of salvage that occurs is exactly what the curve14·

·predicted.··Although, they are both lower.··So perhaps15·

·that's what they are inferring that the total amount of16·

·ET is lower.··But if you look at that Figure 7, the17·

·amount of salvage is actually the same.18·

· · · · · · Your Honor, you see what I'm looking at?··The19·

·two dots and the slope, the difference between the dots20·

·is about the same as the difference in the slope -- or21·

·on the curve, I should say?22·

· · ·· Q.· ·And isn't that what the authors are referring23·

·to as the "ET sub-G being considerably less than would24·

·be predicted using ET/water table depth curves that25·



Page 3077

·have been developed for our study area," citing the two·1·

·Emery curves; isn't that right?·2·

· · ·· A.· ·Yeah.··I guess it depends on how you read·3·

·that.··Perhaps this is a sentence that slipped by me,·4·

·I'm afraid.·5·

· · · · · · I mean, a 62 percent decrease in ETg is a·6·

·substantial decrease.··And perhaps they are looking at·7·

·the absolute percentage.··Because if I'm just looking·8·

·at those dots, what they are basically showing is that·9·

·the absolute amount of ET from groundwater is, perhaps,10·

·about 62 percent.··I'm just guessing that to be around11·

·two-thirds.12·

· · · · · · So perhaps that's what they were referring13·

·to.··It's not clear to me exactly what that sentence14·

·means.15·

· · ·· Q.· ·Now, this is a peer-reviewed paper, isn't it?16·

· · ·· A.· ·Yes.17·

· · ·· Q.· ·Looking at the same suggestion -- or18·

·conclusion paragraph on page 32 of the document that we19·

·were reading from, further down in that paragraph --20·

·and this is down about, looks like it's about eight or21·

·ten lines from the bottom.··There's a sentence that22·

·starts on the left-hand side that says, "These ongoing23·

·site changes suggest that the long-term pattern of site24·

·ET will likely continue to change, and it is impossible25·



Page 3078

·to predict how the long-term, post-drawdown ET rates·1·

·will compare to the pre-drawdown ET rates."·2·

· · · · · · Do you see that sentence?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·And that indicates a great deal of·5·

·uncertainty with respect to the relationship between ET·6·

·from groundwater and depth to the groundwater table,·7·

·doesn't it?·8·

· · ·· A.· ·Well, I think it -- your statement is·9·

·strictly true.··I think, though, in the context, how10·

·you have to evaluate it is that ET salvage is very11·

·real.··Predicting exactly how much there is going to be12·

·in a very large, flat area like the sump area, is13·

·obviously difficult.··But we have a choice of burying14·

·our head in the sand and saying, well, we don't15·

·consider this, or considering the fact that ET salvage16·

·is real.··It's being demonstrated.··We should make an17·

·estimate of how much of that would -- how this would18·

·change.19·

· · · · · · The key thing in the Powder River Basin or20·

·the Tongue River Basin in particular, is that we're21·

·talking about at least 10,000 acre-feet on the Tongue22·

·River, per se.··We're talking ET total in the millions.23·

·We're talking about really, really, really tiny changes24·

·in the amount of ET salvage.25·



Page 3079

· · · · · · But then all of the numbers that is coming·1·

·out of the model are really tiny numbers.··We're·2·

·talking a few hundred acre-feet.··We're never going to·3·

·see that in any of the satellite imagery because the·4·

·numbers are so big.··So we're trying to tease out these·5·

·really small changes.··And we have to consider these·6·

·large offsets that occur as a result of ET salvage.·7·

·That's the whole point of my opinions.·8·

· · ·· Q.· ·The vegetation and topographic conditions in·9·

·the Tongue River valley are significantly different10·

·than the San Luis Valley; wouldn't you agree?11·

· · ·· A.· ·Depends on where you are in the San Luis12·

·Valley.··Along the Rio Grande, it actually is trees and13·

·similar vegetation just like you see in a lot of river14·

·valleys in the arid west.15·

· · ·· Q.· ·Much of the valley is a big, flat expanse16·

·surrounded by a range of mountains?17·

· · ·· A.· ·The valley floor, yes, that's correct.18·

· · ·· Q.· ·And that's the area where this ET function19·

·is -- has been discussed; isn't that right?20·

· · ·· A.· ·This particular paper, yes, discusses on the21·

·flat part.··Yes, that's correct.22·

· · ·· Q.· ·Now, in your report at page 18, there looking23·

·at the second paragraph, you state that "The simulated24·

·discharge to the Tongue River and its tributaries in25·



Page 3080

·the absence of CBM pumping is approximately 4.7 CFS, or·1·

·3400 acre-feet per year"; correct?·2·

· · ·· A.· ·Correct.·3·

· · ·· Q.· ·And then you go through some various·4·

·estimations described as you go down the page, and you·5·

·state in the second to last paragraph that "This·6·

·conservative estimate of 3000 [sic] feet per year for·7·

·ET from groundwater is three times the simulated·8·

·groundwater discharge to the Tongue River model -- or·9·

·the Tongue River in the model"; correct?10·

· · ·· A.· ·The Tongue River model.··The 2002 model for11·

·the Tongue River, yes.12·

· · ·· Q.· ·So, obviously, the 10,000 acre-feet that13·

·you've estimated in the lower part of the page is14·

·not -- can't be accounted for from the 4.7 CFS that the15·

·model determines is discharging to the river; correct?16·

· · ·· A.· ·That's correct.··The number -- the discharge17·

·is smaller than the total amount of ET.18·

· · ·· Q.· ·And so there must be another source for the19·

·ET; isn't that right?20·

· · ·· A.· ·Yes.··And Table 2-3, that we discussed at21·

·length yesterday, shows that kind of calculation that22·

·you should -- that you need to do.23·

· · ·· Q.· ·And so there's obviously another source of24·

·water for the amount of evapotranspiration that you25·



Page 3081

·estimated?·1·

· · ·· A.· ·Yes, exactly as it's illustrated in Table·2·

·2-3.··Did you want me to explain it?·3·

· · ·· Q.· ·Pardon me?·4·

· · ·· A.· ·Did you want me to explain how that happens?·5·

· · ·· Q.· ·No, thank you.··I wanted to ask you the --·6·

·thank you for your question.·7·

· · · · · · I wanted to refer now to your statement about·8·

·the absolute mass balance error of 100 acre-feet per·9·

·year that you found in the model as a whole.··That's10·

·not an unusual value for that quantity, is it?11·

· · ·· A.· ·Not in the models that I build.··In the12·

·models I build, I get that mass balance error down to a13·

·much smaller number.··But that's in this particular14·

·simulation.15·

· · ·· Q.· ·And ET salvage that you claim to be made part16·

·of the BLM model, if it were, that would affect not17·

·only depletions but accretions, wouldn't it?18·

· · ·· A.· ·That's true.··Yes.19·

· · ·· Q.· ·So it would have the effect of not only20·

·reducing depletions, but it would also reduce21·

·accretions?22·

· · ·· A.· ·That's true.··And that's what I did in Table23·

·1.24·

· · ·· Q.· ·Point of clarification.··I think Figure 10 in25·



Page 3082

·your report, this is the one that you -- this is the·1·

·one that you corrected.··I think it's in Exhibit W15A·2·

·when we asked you about some discrepancy in the·3·

·deposition?·4·

· · ·· A.· ·Yes.··I'm sorry about that.·5·

· · ·· Q.· ·No problem.··The blue line that you referred·6·

·to in your testimony as being reported, that's not·7·

·actually reported for the whole period, is it, that you·8·

·show here?·9·

· · ·· A.· ·That's correct.··This -- the actual real data10·

·that we have only went until somewhere in 2012, I11·

·believe.12·

· · ·· Q.· ·So to the extent that this figure indicates13·

·that values after that appearing on the blue line are14·

·reported, that's not correct?15·

· · ·· A.· ·Yes, I think that's probably true.··They were16·

·actually Mr. Larson's estimate of what those reported17·

·values would have been in the future.··So you're18·

·correct; they are not strictly reported, they are an19·

·estimate.20·

· · ·· Q.· ·And you've also criticized the use of the21·

·drain function to simulate the pumping as opposed to22·

·the reported values; correct?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·But isn't it true that even with Mr. Larson's25·



Page 3083

·use of the drain function that was built into the model·1·

·by the BLM, that the depletions shown to the stream·2·

·caused by the CBM pumping, everything else being equal·3·

·are actually less than the depletions you get if you·4·

·insert the reported well pumping values?·5·

· · ·· A.· ·Well, it's not entirely true, Mr. Draper.·6·

·There are some instances where that is true.··But I·7·

·don't think it's universally true.··And it's·8·

·specifically not true when you look at Montana CBM·9·

·pumping on Wyoming.10·

· · ·· Q.· ·Well, it is true for the years in question11·

·here, isn't it?··2001, 2002, 2004, 2006; isn't that12·

·right?13·

· · ·· A.· ·It is true for 2004 and 2006, yes.··The14·

·differences occur at later times.15·

· · · · · · MR. DRAPER:··Your Honor, if I may have a16·

·moment?17·

· · · · · · SPECIAL MASTER:··You may.··And, in fact,18·

·let's take just a two-minute break.··I think I need to19·

·go and get something.··So no one needs to stand.20·

· · · · · · · · · · · (Recess taken 11:31 to 11:3321·

· · · · · · · · · · · a.m., November 13, 2013)22·

· · · · · · SPECIAL MASTER:··Okay.··Mr. Draper.23·

· · · · · · MR. DRAPER:··Your Honor, as I just mentioned24·

·to Dr. Schreüder, I have completed my questions for the25·


WILLEM A. SCHREÜDER, PH.D. - November 13, 2013Examination by the Special Master

Page 3084

·moment.·1·

· · · · · · SPECIAL MASTER:··Okay.··Great.··So let me --·2·

·I'm going to try and get through these questions·3·

·relatively quickly.··And thankfully counsel have done a·4·

·good job of covering most of the issues that I would·5·

·have covered.··And I've also had an opportunity to ask·6·

·you some clarifying questions along the way.··So·7·

·hopefully this will be relatively quick.·8·

· · · · · · · · · · · · EXAMINATION·9·

·BY SPECIAL MASTER:10·

· · ·· Q.· ·I did want to start out by spending a little11·

·bit more time on your calculation that you made of ET12·

·salvage on page 18.··And then that feeds into Table 113·

·on page 19.··So let's begin with the second -- I'm14·

·sorry -- the third full paragraph on page 18.15·

· · · · · · And so you start out by talking about the16·

·metric estimate of ET and the model cells for 2004 and17·

·2006.··And I actually -- my very first question on that18·

·is that for 2004 and 2006, so you went back, and you19·

·actually looked at the metrics data and estimated it20·

·for -- looked at it for those particular cells?21·

· · ·· A.· ·No.··I just used Dr. Allen's results and22·

·said, this is the answer; just use that.23·

· · ·· Q.· ·Right.··But did he actually total it up for24·

·those particular cells?25·



Page 3085

· · ·· A.· ·No.··He gave us the pixel-by-pixel values.·1·

·And so I rounded it up for the very large cells.·2·

· · ·· Q.· ·Right.··So you took the pixels and then added·3·

·them up for 2004 and 2006 for the cells that were in·4·

·the model?·5·


· · ·· Q.· ·Okay.··And for those, was there a difference·7·

·between 2004 and 2006?·8·

· · ·· A.· ·Yes.··You can actually see it in Figure 6A·9·

·and B.··The numbers were very close.··For 2004, it was10·

·24494.··And for 2006, it was 24234.··So it's almost the11·

·exact same number.12·

· · ·· Q.· ·Okay.··One of the questions I had was that we13·

·would presume to the degree that over time there is14·

·groundwater ET salvage that you would actually expect15·

·to see differences in the ET rates.··So why wouldn't16·

·you see a difference in the ET rates here?17·

· · ·· A.· ·That's basically the problem.··These numbers18·

·are so large when you start looking at the larger19·

·scales, that those differences can't be teased out.20·

·So, obviously, the precipitation in those two years21·

·aren't the same.22·

· · · · · · So if there's simply an additional 40023·

·acre-feet of precipitation or there's something else24·

·that changed, those changes get completely masked.··The25·



Page 3086

·only way that we can try and attribute that change to·1·

·one particular source, which is the impact of CBM, is·2·

·to use a model to, say, keep all of these other things·3·

·the same and then just tease out just that particular·4·

·difference.·5·

· · ·· Q.· ·So this gets back to something Mr. Draper·6·

·mentioned a moment ago.··But the precipitation level·7·

·was actually lower in 2006 than 2004, according to your·8·

·report here?·9·

· · ·· A.· ·I don't remember exactly.··But that's --10·

· · ·· Q.· ·Page 18, same paragraph, you say it shows11·

·precipitation in 2004 as 11.06 inches and in 2006,12·

·10.84 inches?13·

· · ·· A.· ·Correct.··But that's, obviously, a fairly14·

·small difference.··Of course, Dr. Allen, I'm sure, will15·

·spend lots of time explaining this to you.··But there's16·

·all kinds of other factors that go into the total ET --17·

·temperature, relative humidity, insulation, and all of18·

·those kinds of things.··So it's not just the19·

·precipitation that we're trying to subtract.··It's all20·

·of those other factors that could affect the total21·

·amount of ET.22·

· · ·· Q.· ·So then going on, so you then talk about the23·

·area of the cells as a total.··The new note next to WWC24·

·Engineering estimated that 85.6 percent of the area in25·



Page 3087

·these model cells are nonirrigation.··So how did you·1·

·use the 85.6 percent?·2·

· · ·· A.· ·So what I was trying to figure out is to what·3·

·extent applied irrigation water is going to mess up my·4·

·calculations.··So I used that to reduce the calculation·5·

·to just the area that was nonirrigated.·6·

· · ·· Q.· ·So you ended up, then, in this particular·7·

·calculation just looking at the amount of ET for the·8·

·nonirrigated area?·9·

· · ·· A.· ·That's what I was concentrating on, yes.10·

· · ·· Q.· ·So then rather than looking at 15,360 acres,11·

·you looked at 85.6 percent of 15,360 acres?12·

· · ·· A.· ·That's what I recall, yes.··Little vague on13·

·exactly what I did, but, yes, I think that's my14·

·recollection, yes.15·

· · ·· Q.· ·Okay.··And then you note that precipitation16·

·was, as we mentioned a moment ago, about 11 inches in17·

·both of those two years.··And so using that as an18·

·average, you then say the ET expected from just19·

·precipitation is about 14,000 acre-feet per year.20·

· · · · · · So could you tell me how you calculate the21·

·14,000 acre-feet per year?22·

· · ·· A.· ·Let me see if I can follow that exactly.··So23·

·the 15,360 you would multiply by 85 times 11 inches,24·

·and that gives you the precipitation number for about25·



Page 3088

·14,000.··And then you take the 24,000 of ET -- I think·1·

·I adjusted that -- by the 85 percent and then subtract·2·

·it, basically 24 from 14, which gives me the 10 --·3·

·sorry.··Subtract 14 from the 24 to give me the 10.·4·

· · ·· Q.· ·Well, what I'm interested in is how did you·5·

·calculate the 14?·6·

· · ·· A.· ·Oh, that was my precipitation estimate.··So·7·

·basically, it's that 15,360 acres times the area --·8·

·times the 11, which is the area -- times the 11 inches.·9·

·And as I recall, I adjusted it for 85 percent.··So10·

·that's why I don't have a calculator with me so I can't11·

·check that that is my math.··But I believe that's what12·

·I did.13·

· · ·· Q.· ·Okay.··Because I looked at this, and I took14·

·15,360, and I multiplied it by 11.··And, of course, I'm15·

·going to end up with more than 14,000 at that16·

·particular stage.17·

· · ·· A.· ·Well, I have to check my math.18·

· · ·· Q.· ·So you think --19·

· · ·· A.· ·But I think that was the 85 percent20·

·correction that I applied.21·

· · ·· Q.· ·Okay.··Okay.··And so then I understand from22·

·that how you get down to the 10,000 feet.··And you then23·

·make a basically strict proportionate assumption, that24·

·the amount of groundwater ET salvage to the amount of25·



Page 3089

·actual depletion of the river is the 10,000 acre-feet·1·

·to what the model is showing?·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·So under what circumstances would that type·4·

·of a proportionate assumption be correct?·5·

· · · · · · I mean, it's nice to make a proportionate·6·

·assumption.··So let me ask you differently:··Why did·7·

·you make a proportionate assumption rather than a·8·

·different one?·9·

· · ·· A.· ·Well, I gave you the results for the10·

·Republican River, for example, for 2012.··And so it's11·

·just been my experience that very often that's how that12·

·happens.··So in that case, both the total amount of ET13·

·and the native streamflow is about 500,000.··So it's14·

·about the same.··In 2012, by actually running the model15·

·and going through all the calculations, we saw that the16·

·stream depletions was about 200,000.··And ET salvage17·

·was 150,000.··So that's an example of, well, the18·

·changes are sort of proportional to the absolute19·

·magnitudes.··Of course, that's just first order of20·

·approximation.21·

· · · · · · But it's been my experience that generally,22·

·if there's ten times more ET than there is streamflow23·

·and there's a reduction in the alluvial groundwater,24·

·not knowing anything more sophisticated, you can assume25·



Page 3090

·that the change will be proportionate in both of those.·1·

·And it comes from the argument that these are competing·2·

·mechanisms.··Both the plants and the stream have equal·3·

·access to the alluvial groundwater.··And so if there's·4·

·an impact to the alluvial groundwater, they would·5·

·probably be -- not knowing anything else, we can assume·6·

·that they will both be impacted by the same amount.·7·

· · · · · · Now, of course, I'm sure you can construct·8·

·pathological cases where it all goes to ET or all goes·9·

·to sub -- or to the stream.··But not knowing anything10·

·else, as we do in this case, that's the best first11·

·order of approximation I can come up with.12·

· · ·· Q.· ·And, again, your choice of that particular13·

·assumption is based on your experience in the one-river14·

·system?15·

· · ·· A.· ·We see similar things in the San Luis Valley.16·

· · ·· Q.· ·Okay.··So then I also had a question --17·

· · ·· A.· ·I should add to that.··I think we saw similar18·

·things in the Raton Basin.··Although, I didn't do that19·

·exact calculation.··But I think it's more than just the20·

·Republican River.··I think it's more widespread.21·

· · ·· Q.· ·Okay.··Think?22·

· · ·· A.· ·I haven't done the calculations, so I don't23·

·know for sure.24·

· · ·· Q.· ·Okay.··Next, then, if somebody could put back25·



Page 3091

·up Figure 4 for Dr. Schreüder and I can look at Figure·1·

·4.··I just wanted to go back to your comment with·2·

·respect to Mr. Larson's rebuttal testimony that he was·3·

·comparing apples and oranges.··Or at least he was not·4·

·comparing apples -- he was not comparing trout to·5·

·trout.·6·

· · · · · · So on this particular figure, what you did·7·

·was you took the metrics estimate of ET on the model·8·

·cells; is that --·9·

· · ·· A.· ·Right.10·

· · ·· Q.· ·-- correct?11·

· · ·· A.· ·The ones that are shown in blue and dark12·

·blue.13·

· · ·· Q.· ·Okay.··And then you looked at the BLM model's14·

·calculation of -- what did you look at from the other15·

·side?16·

· · ·· A.· ·The discharge to those same cells.17·

· · ·· Q.· ·Okay.··So you were looking, basically, at18·

·both ET and discharge for those same cells?19·

· · ·· A.· ·For the exact same cells, yes.20·

· · ·· Q.· ·Okay.··Okay.··Thanks.··So I just want to21·

·be -- I want to have one other thing clear.··So if I22·

·understand your testimony, you've -- number one, you've23·

·criticized Mr. Larson for failing to include, for24·

·example, ET in his model; is that correct?25·



Page 3092

· · · · · · And you actually have to say yes or no.·1·

· · ·· A.· ·Well, I mean, he just used the 2002 model.·2·

·He didn't attempt to make any changes to it.··So I'm·3·

·not sure I can say it's his fault.··The model he was·4·

·using was not appropriate because he didn't consider·5·

·ET.·6·

· · ·· Q.· ·Okay.··That's actually a good point.··So let·7·

·me rephrase this.··So I want to separate out questions·8·

·of the model itself from Mr. Larson's use of the model.·9·

·And so I understand your criticisms of Mr. Larson's use10·

·of the model.11·

· · · · · · And so are you also testifying, as I12·

·understand it, that the use of this particular model13·

·itself is inappropriate?14·

· · ·· A.· ·I think that's -- the last statement is the15·

·most accurate.··It's inappropriate to use this16·

·particular model for this specific purpose.··This model17·

·may be perfectly fine for the purposes of the EIS.··But18·

·in order to specifically look at the impact of CBM19·

·pumping to the Tongue River, that's an inappropriate20·

·use of this model.··And the BLM modelers in their21·

·statement said, if you wanted to do something like22·

·that, you have to refine this model; you can't just use23·

·it without any modifications.24·

· · · · · · So my argument would be, if you wanted to do25·



Page 3093

·that, one of the things that you ought to do is add ET·1·

·to the model.·2·

· · ·· Q.· ·Okay.··So is it also your opinion that if you·3·

·wanted to use this particular -- well, let me try and·4·

·rephrase that.·5·

· · · · · · Is it your opinion that the model would be·6·

·appropriate to use if you added in ET?·7·

· · ·· A.· ·If you added in ET and you made an·8·

·appropriate recalibration of the model.··So you·9·

·actually looked at Tongue River base flow and10·

·calibrated to it and got better head matches and11·

·matches with the observed Tongue River base flow.··So12·

·it's not just you add ET and everything is good.··You13·

·have to do additional work.14·

· · ·· Q.· ·Right.··And is it also correct, though, that15·

·right now we do not have a good estimate of Tongue16·

·River base flow?17·

· · ·· A.· ·It would be very hard to come up with a good18·

·estimate, yes.··I don't know of any specific19·

·observations to address on that at this time.20·

· · ·· Q.· ·Okay.··Are there any other groundwater models21·

·that include these areas of the Tongue River other than22·

·the BLM models?23·

· · ·· A.· ·There is a model that was created by a24·

·Dr. Wheaton, I believe, specifically to look at the25·



Page 3094

·coal mine around Decker.··So it modeled part of this·1·

·area.··But I don't know to what extent it had detailed·2·

·description of the Tongue River in Wyoming.··And I·3·

·think the spatial extent was largely limited to·4·

·Montana.··I don't think it extended very far into·5·

·Wyoming.·6·

· · ·· Q.· ·Okay.··Okay.··If we could look at your·7·

·Figure 9, which is the label at the top Percent CBM·8·

·Return Flow 2008.··On page 12 of your report, and·9·

·referring to Figure 9, you note that this has some10·

·distinct spatial patterns.11·

· · · · · · And could you explain what you mean?12·

· · ·· A.· ·Well, what I was just noticing in this13·

·particular figure is that there are these areas that14·

·are sort of fairly large areas of purple along the15·

·edges.··And then in the interior, there are sort of16·

·areas that are fairly extensively red.··And so what I17·

·was referring to is that it's just not completely18·

·random that, you know, you may be off one cell, but19·

·you're over in one cell and under in another cell.20·

· · · · · · There seems to be a spatial pattern to these.21·

·So you wouldn't be able to make the argument, yes, I'm22·

·wrong on this cell, but I'm over on the next cell, so23·

·it evens out.··So those patterns indicate to me that24·

·there may be some spatial bias that was inadvertently25·



Page 3095

·introduced in this.·1·

· · ·· Q.· ·And do you have -- so I understand your point·2·

·that this could indicate some type of a bias that's·3·

·been introduced.·4·

· · · · · · Do you have any opinions as to whether or not·5·

·there actually was a bias?·6·

· · ·· A.· ·Well, I think there's a bias.··I just don't·7·

·know how big it is.·8·

· · ·· Q.· ·So you would think there would be a bias.·9·

·But you're not sure how the bias would actually affect10·

·the numbers?··I'm not asking you to guess.··I'm just11·

·asking --12·

· · ·· A.· ·Well, the fact that along Dutch Creek there13·

·are significant areas of red where the returns are14·

·fairly low, makes me think that perhaps the bias on at15·

·least Dutch Creek could be that return flows are16·

·underestimated.··So there may be a detriment to Wyoming17·

·in the biases.··But I haven't tried to quantify how18·

·much that is.19·

· · ·· Q.· ·So you haven't actually looked at the system20·

·as a whole in terms of looking to see whether there's a21·

·bias?22·

· · ·· A.· ·I haven't tried to quantify to what extent23·

·that bias hurts either Wyoming or Montana's arguments.24·

· · ·· Q.· ·Okay.··Thanks.··Then this is on page 14.25·



Page 3096

·Okay.··A small point, I'm just curious.··On page 14, on·1·

·the third from last paragraph, you're talking about·2·

·recharge from pumping at 60 percent.··And what I'm·3·

·interested in is that second sentence.··"The simulation·4·

·with the AECOM 2011 estimate of 72 percent suggests·5·

·that CBM will be a net benefit to the stream system·6·

·over the entire simulation period."··And I guess my·7·

·question is I can understand why recharge might end up·8·

·being a net benefit to the stream system in early·9·

·years.··But this suggests over an entire simulation10·

·period that it's a net benefit.··So is this because11·

·it's a truncated simulation period?12·

· · ·· A.· ·No, Your Honor.··If you look, for example, at13·

·Figure 12, that's where I show this.··You see that you14·

·have a net benefit here in early years.··And then over15·

·time, it basically approaches the axis.··And I think it16·

·goes back to the discussion we had earlier this17·

·morning, which is that the recharge is concentrated in18·

·the Tongue River Basin.··Whereas, the impacts actually19·

·expand into the Powder River Basin.··And assuming that20·

·the model is correct in partitioning those out, the net21·

·benefits to the Tongue River itself actually is --22·

·overwhelms the impacts to the Tongue River.··And so the23·

·balance of the impacts actually manifest themselves in24·

·the Powder River Basin in, you know, Clear Creek or --25·



Page 3097

·in one or the other streams somewhere else in the·1·

·Powder River Basin.·2·

· · ·· Q.· ·Okay.··And following up on this last -- your·3·

·last point.··So you mentioned earlier the potential·4·

·impact on the Powder River watershed.··So if you were·5·

·to actually develop a model for -- to actually·6·

·determine what the impacts on the Tongue River are,·7·

·what you would -- you only would need to model the·8·

·Tongue River area because, again, it would be a border·9·

·effect?10·

· · ·· A.· ·There's multiple ways that you can do it.11·

·There's actually some new technologies available where12·

·you can refine the grid just locally in the Tongue13·

·River and keep a course grid otherwise.··But if you14·

·were to construct a subarea model, let's say of the15·

·Powder River watershed, it would have to put explicitly16·

·into that model how the flow across each of those17·

·boundaries change.··By default, MODFLOW will assume18·

·that there's no change over those boundaries.19·

· · · · · · But we have a technique called the general20·

·head boundary description where you can prescribe how21·

·the flow across the boundary would change as a response22·

·to water levels inside the basin.··So you'll have to be23·

·intelligent about it and not just assume that all of24·

·the pumping impacts are contained within the Tongue25·



Page 3098

·River Basin if you were to build a subarea model.·1·

· · ·· Q.· ·All right.··So, again, if -- what I'm trying·2·

·to understand, if you actually go into a localized·3·

·model, do you then also have to understand what's·4·

·happening outside of that localized area?·5·

· · ·· A.· ·Or you at least have to keep the model, the·6·

·ability to have some of those effects propagate outside·7·

·that area, if you believe that -- that it will occur.·8·

· · ·· Q.· ·Okay.··And does that mean that you then have·9·

·to refer back to the type of generalized model that the10·

·BLM developed?11·

· · ·· A.· ·In fact, that is what they did in 2009.··They12·

·actually constructed a regional model.··And then they13·

·had a subarea model where they had a similar14·

·description of how the flow between the regional model15·

·and that subarea model were changed.16·

· · ·· Q.· ·Do you know how long it took them to build17·

·the -- or to develop the 2009 model?··And if you don't18·

·know, I'm not asking you to guess.19·

· · ·· A.· ·I don't know exactly how much effort they put20·

·into that.··I don't have an estimate.21·

· · ·· Q.· ·Okay.··Then a final question, and this is on22·

·Exhibit M37 that several people have asked you about23·

·and our Table 4.2-2, which is, again, the various24·

·storage values.25·



Page 3099

· · ·· A.· ·Can you remind me?·1·

· · ·· Q.· ·It's on page 4-26.·2·

· · ·· A.· ·Okay.·3·

· · ·· Q.· ·And my question here is you've mentioned at·4·

·several points in time the relative coefficients for,·5·

·in this model, layers 5 and 6.··So what would be the·6·

·relevance of the relative coefficients to the results·7·

·in this particular case?·8·

· · ·· A.· ·It would -- so all of these layers are not·9·

·the exact same thickness.··And how the horizontal10·

·impacts propagate throughout the model obviously11·

·becomes, you know, part of the major calculation.··So12·

·the way that we very often calibrate models is to look13·

·at our best estimates of the store activity values and14·

·then see, well, we don't get the right amount of15·

·drawdown.··We don't have enough information to tell us16·

·what exactly the values are.17·

· · · · · · So perhaps if we want to increase the store18·

·activity by 20 percent, you use the ratios between19·

·those and increase all of them by 20 percent or reduce20·

·them all by 20 percent and if we have a reason to21·

·believe that the store activity of that lower layer is22·

·higher than the upper layer, we would change them23·

·proportionally.··Where that really makes a big24·

·difference is that if you have pumping from that25·



Page 3100

·particular layer and it has store activity much larger·1·

·than the layers above it or below it, what would happen·2·

·is that the largest decrease or the largest source of·3·

·water as a result of a declining water table would then·4·

·be from that particular layer.·5·

· · · · · · So where that changing storage occurs can be·6·

·important, especially when you look at which of those·7·

·layers, for example, the mines or the CBM wells, are in·8·

·contact with.·9·

· · ·· Q.· ·But, again, I guess my question is -- and10·

·help me understand this.··And I still am going to have11·

·to go back and master these facts.··So this might make12·

·a little sense.··But if you are, for example, pumping13·

·from layer 6, I understand why the storage coefficient14·

·would then affect what the potential amount of15·

·depletion is.··But why would the coefficient for -- why16·

·would the ratio of the coefficient for layer 5 and17·

·layer 6 be relevant?18·

· · ·· A.· ·Because that's often inferred from other19·

·information that the geologist has that says, you know,20·

·most of the storage ought to be coming from that layer21·

·not from the layer up above it.··And like I said, I22·

·don't know exactly what their motivation for that is or23·

·their justification for that is.24·

· · · · · · But the key being that it is their25·



Page 3101

·understanding that most of that change in storage ought·1·

·to be happening in the lower Fort Union Formation as·2·

·opposed to the upper units.··And they have kept that·3·

·particular ratio from one model to the next.··So they·4·

·must have one justification for that.·5·

· · ·· Q.· ·So let me ask you, one line away.··Let's·6·

·assume that you were magically correct with respect to·7·

·the coefficients -- the storage coefficient for layer·8·

·6, but layer 5 is off, and you're pumping from layer 6.·9·

·Of what relevance would be the fact that you have10·

·incorrect storage coefficient for layer 5?11·

· · ·· A.· ·Well, it all comes down to what happens in12·

·the Powder River Basin more than up in the Tongue River13·

·Basin.··Because this is where these values make most of14·

·the difference.15·

· · · · · · And so the different operations that are16·

·occurring in that part of the model are mapped to17·

·specific layers.··So I think that's where it most18·

·matters to these folks that they maintain that19·

·particular ratio.20·

· · ·· Q.· ·So I'm still wondering, I understand why you21·

·think the ratio is important in terms of what people22·

·expected would be the relationship to begin with.··But23·

·in terms of what results the model actually produces,24·

·if you're pumping from one layer and you get the25·



Page 3102

·coefficient right for that layer but you have the ratio·1·

·wrong for those bottom two layers, what would be the·2·

·potential consequences of that?·3·

· · ·· A.· ·Well, again, it depends on what we're talking·4·

·about.··What we've demonstrated is that in the Tongue·5·

·River area, this really doesn't make much of a·6·

·difference at all.··But in the Powder River, per se, if·7·

·you are withdrawing water from layer 6 and you're·8·

·expecting most of that change in storage to happen in·9·

·layer 6, it won't get a good calibration if you have10·

·the wrong storage coefficient for that particular11·

·layer.12·

· · · · · · If you expect that storage to happen in layer13·

·5, or if you put that storage in layer 5 and you're14·

·actually pumping from layer 6 or withdrawing water from15·

·layer 6, well, in order to get to that water level, you16·

·have to then set up a vertical gradiant that can move17·

·the water from layer 5 into layer 6.··And then you can18·

·withdraw it.··And your calibration probably won't work19·

·out.20·

· · · · · · SPECIAL MASTER:··Thanks.··Those are my only21·

·questions.22·


·24·

·25·


Recross-Examination by Mr. DraperWILLEM A. SCHREÜDER, PH.D. - November 13, 2013

Page 3103

· · · · · · · · · · RECROSS-EXAMINATION·1·


· · ·· Q.· ·Just to follow up on a few of the questions·3·

·of the Master.··As a general proposition, even though·4·

·you've criticized the BLM model and how it's been used·5·

·by Mr. Larson, you've relied on that model for many of·6·

·your opinions in this case, haven't you?·7·

· · ·· A.· ·I have difficulty with "rely."··But, Your·8·

·Honor, I tried to give you some reasonable numbers·9·

·based on some of the predictions of the model, yes.10·

· · ·· Q.· ·Now, you talked also within response to the11·

·Special Master about subbasin or regional models that12·

·were made.··And the two that have been made here were13·

·for relatively small subareas; isn't that right?14·

· · ·· A.· ·The applications reported in the 2002 was15·

·relatively small.··The one for the 2009 that I just16·

·referred to a little bit earlier was, I think, roughly17·

·about a third to a half of the size of the regional18·

·model.19·

· · ·· Q.· ·You indicated, I think it was, 170,000 acres20·

·for the Caballo and 35,000 acres for the size of the LX21·

·Bar?22·

· · ·· A.· ·That sounds correct, yes.23·

· · ·· Q.· ·And those areas are significantly smaller24·

·than the Tongue River Basin; isn't that right?25·



Page 3104

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·Now, you discussed with the Special Master·2·

·Figure 9 in your report.··And this is the figure that·3·

·is labeled Percent CBM Return Flow 2008; correct?·4·

· · ·· A.· ·Correct.·5·

· · ·· Q.· ·Now, there are really two different phenomena·6·

·going on here.··Isn't it the case that you have·7·

·depletions to the Tongue River occurring primarily·8·

·along the Tongue River, but the location of the return·9·

·flows may be very localized, say, on Prairie Dog Creek,10·

·for instance?11·

· · ·· A.· ·I think the answer to that is yes.··Yes.12·

· · ·· Q.· ·And those return flows, let's take the13·

·example of Prairie Dog Creek, those are available to be14·

·diverted in Wyoming before they get to the state line;15·

·isn't that right?16·

· · ·· A.· ·I don't know if that's true or not, but17·

·perhaps yes.18·

· · ·· Q.· ·And you've been to the gauge at the bottom of19·

·Prairie Dog Creek?20·

· · ·· A.· ·Yes, I believe so.21·

· · ·· Q.· ·And typically the flow there during the22·

·irrigation season is very low, isn't it?23·

· · ·· A.· ·I'm not sure I have personal knowledge of24·

·exactly what that is.··That's probably better asked of25·



Page 3105

·somebody else.·1·

· · · · · · MR. DRAPER:··Your Honor, if I may have a·2·

·further just brief moment?·3·

· · · · · · SPECIAL MASTER:··You certainly may.·4·

· · · · · · MR. DRAPER:··Thank you.·5·

· · · · · · Thank you, Your Honor.··One further question·6·

·if I may.·7·

· · · · · · SPECIAL MASTER:··You may.·8·


· · ·· Q.· ·Doctor, on page 18, which you discussed with10·

·the Special Master, page 18 of your report, you spoke11·

·of the -- or on that page, you suggest that the ratio12·

·of the ET from groundwater to the streamflow is 3 to 1;13·

·is that right?14·

· · ·· A.· ·Approximately, yes.15·

· · ·· Q.· ·And where did you -- how did you develop your16·

·figure for the streamflow?17·

· · ·· A.· ·Well, Your Honor, the only information we18·

·have is the discharge to those streams that we have19·

·from the model.··We don't have an actual estimate of20·

·what the gains to the Tongue River is.··So I used that21·

·as a surrogate for that particular quantity.22·

· · ·· Q.· ·You used an estimate from the model?23·

· · ·· A.· ·Yes.24·

· · · · · · MR. DRAPER:··I think that will do it, Your25·



Page 3106

·Honor.··Thank you.·1·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.·2·

· · · · · · Mr. Brown.·3·

· · · · · · MR. BROWN:··No questions.·4·

· · · · · · SPECIAL MASTER:··No questions.··Okay.··Then,·5·

·Mr. Schreüder, you are free to step down from the stand·6·

·and hopefully make your plane.·7·

· · · · · · THE WITNESS:··Thank you very much, Your·8·

·Honor.·9·

· · · · · · SPECIAL MASTER:··And so what I would like --10·

·we're going to take a slightly longer than average11·

·lunch hour.··So we're going to come back at 20 after12·

·1:00.··And I realize that Mr. Allen needs to get off13·

·today also.··And so we will make sure he does.··I'm14·

·hoping and expecting that his will be -- take a little15·

·bit less time than the groundwater expert testimony.16·

· · · · · · So, again, we will come back at 1:20.··And we17·

·will continue until we finish Mr. Allen today.18·


· · · · · · · · · · · (Recess taken 12:10 to 1:2120·

· · · · · · · · · · · p.m., November 13, 2013)21·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be22·

·seated.23·

· · · · · · Mr. Draper?24·

· · · · · · MR. DRAPER:··Your Honor, we would call our25·


RICHARD ALLEN, PH.D. - November 13, 2013Direct Examination by Mr. Draper

Page 3107

·next witness.·1·

· · · · · · SPECIAL MASTER:··Mr. Larson.·2·

· · · · · · MR. DRAPER:··That would be Dr. Allen.·3·

· · · · · · (Richard Allen sworn.)·4·

· · · · · · THE CLERK:··Have a seat please.··When you're·5·

·seated, please state your name and spell it.·6·

· · · · · · THE WITNESS:··Richard Glen Allen,·7·

·R-i-c-h-a-r-d G-l-e-n A-l-l-e-n.·8·

· · · · · · SPECIAL MASTER:··So good afternoon,·9·

·Dr. Allen, and I promise you we will do our very best10·

·to get you finished today.11·

· · · · · · THE WITNESS:··That's fine.··I can reschedule12·

·if needed.··Thank you.13·

· · · · · · SPECIAL MASTER:··You're welcome.14·

· · · · · · MR. DRAPER:··It would be -- Your Honor, it15·

·would be best if Dr. Allen would make his plane today.16·

·In order to do that, he needs to leave here no later17·

·than 4:00.18·


· · · · · · · · ·· RICHARD ALLEN, PH.D.,20·


· · · · · · · · · ·· DIRECT EXAMINATION22·


· · ·· Q.· ·Good afternoon, Dr. Allen.24·

· · ·· A.· ·Good afternoon.25·



Page 3108

· · ·· Q.· ·What is your current position?·1·

· · ·· A.· ·I'm a professor of water resources·2·

·engineering at the University of Idaho.·3·

· · ·· Q.· ·And do you also have a consulting firm?·4·

· · ·· A.· ·Yes.··I have two consulting practices:··one·5·

·called Allen Engineering, the other one called·6·

·Evapotranspiration Plus.·7·

· · ·· Q.· ·How long have you been a member of the·8·

·university faculty?·9·

· · ·· A.· ·Since 1998.10·

· · ·· Q.· ·And what is your position on the faculty?11·

· · ·· A.· ·I'm a full professor with a joint12·

·appointment.··Half of my time is in the Department of13·

·Civil Engineering.··Half of my time is in the14·

·Department of Biological and Agricultural Engineering.15·

· · · · · · SPECIAL MASTER:··By the way, Mr. Draper,16·

·again, feel free to ask some questions that focus in on17·

·what you particularly want me to know as to Dr. Allen's18·

·qualifications.··But I can tell you, having reviewed19·

·the CV and qualifications in the report, that I don't20·

·have any questions about his qualifications.21·



· · ·· Q.· ·Briefly, Dr. Allen, what is your background24·

·as it relates to the subject area that you're going to25·



Page 3109

·testify to here?·1·

· · ·· A.· ·I have a background in irrigation·2·

·engineering, irrigation systems design and then·3·

·primarily with focus on evapotranspiration and·4·

·irrigation water requirements.·5·

· · ·· Q.· ·In the course of your work, have you had·6·

·occasion to publish documents regarding crop·7·

·evapotranspiration through the United Nations Food and·8·

·Agriculture Organization?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·Does that include what's been marked Exhibit11·

·M31 in this case, the document that is commonly known12·

·as FAO56?13·

· · ·· A.· ·Yes.··That was published in 1998.··I was the14·

·lead author on that publication.15·

· · ·· Q.· ·How is that document relevant to the16·

·testimony you're providing in this case?17·

· · ·· A.· ·This document was one of the first places18·

·where what we call the Penman-Monteith reference19·

·evapotranspiration method was established as a primary20·

·and recommended method for estimating21·

·evapotranspiration.··That method is used as the basis22·

·for calibration of the METRIC image processing model23·

·that I'll talk about shortly.24·

· · · · · · Also, the concept of the use of crop25·



Page 3110

·coefficients established with this FAO56 is also a·1·

·basis of how we extrapolate between satellite images in·2·

·the METRIC process to produce time integrated·3·

·evapotranspiration.·4·

· · ·· Q.· ·At the national level, have you coedited any·5·

·publications relating to the subject matter of the·6·

·testimony you're about to give?·7·

· · ·· A.· ·Yes.··More notably, in 1990, I was coeditor·8·

·of what's called -- well, it's an -- it's an·9·

·engineering practices manual published by the American10·

·Society of Civil Engineers.··Title is11·

·Evapotranspiration and Irrigation Water Requirements.12·

·That manual is intended to be used as a practice13·

·standard in the U.S.14·

· · · · · · And then in 2005, also with the American15·

·Society of Civil Engineering, I was one of the primary16·

·writers of standardization on the calculation of17·

·reference evapotranspiration.18·

· · ·· Q.· ·Before we leave the manual 70, I'd like to19·

·identify that for the record as Exhibit M56, or at20·

·least those are excerpts of that; is that right,21·

·Doctor?22·

· · ·· A.· ·Yes.23·

· · ·· Q.· ·And the excerpts that you have as part of24·

·M56, do those relate particularly to the area of25·



Page 3111

·testimony that you're providing in this case?·1·

· · ·· A.· ·Yes.·2·

· · ·· Q.· ·And are those the fundamental equations·3·

·expressing the physical relationships that underlie·4·

·your testimony for this case?·5·

· · ·· A.· ·Yes.··And they just establish the selection·6·

·of the Penman-Monteith equation as formulated by the·7·

·American Society of Civil Engineering as a recommended·8·

·basis for the calculation of reference ET.··That same·9·

·recommendation was then repeated in 2005.10·

· · ·· Q.· ·Penman-Monteith, would you spell that for the11·

·record?12·

· · ·· A.· ·P-e-n-m-a-n, hyphen, M-o-n-t-e-i-t-h.13·

· · ·· Q.· ·Thank you.··And is that the standard method14·

·for determining evapotranspiration under full water15·

·supply in the world today?16·

· · ·· A.· ·Yes.··And the Penman-Monteith is a singular17·

·equation that takes weather data input, including solar18·

·radiation, wind speed, air temperature, and dewpoint19·

·for primary parameters that impact evaporation demand20·

·and establishes a near maximum limit or upper limit on21·

·the rate of evapotranspiration.··It's usually applied22·

·either on an hourly basis or a daily basis.23·

· · · · · · So we term it a reference ET because we use24·

·it, then, as the ET expected generally from -- by25·



Page 3112

·standardized definition from a half-meter tall crop of·1·

·alfalfa at full cover.··The Penman-Monteith from the·2·

·ASCE is calibrated to represent the evapotranspiration·3·

·we would expect from that surface.·4·

· · · · · · And then other crops are then related to that·5·

·reference ET through the use of what we call crop·6·

·coefficients.·7·

· · ·· Q.· ·So just to explain that basic relationship·8·

·that underlies the physical representation that you're·9·

·referring to, ET is the product of the reference ET and10·

·a crop coefficient specific to the crop in question?11·

· · ·· A.· ·Yes, that's correct.12·

· · ·· Q.· ·Now, you referred to the 2005 ASCE13·

·standardized reference evapotranspiration equation.··Is14·

·that what we have as Exhibit M53 in this case?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·And briefly, what is that document?17·

· · ·· A.· ·What is the document?18·

· · ·· Q.· ·Yes.19·

· · ·· A.· ·This document presents a fairly concise20·

·listing of the component equations used to produce the21·

·reference ET as represented by a full cover of crop of22·

·alfalfa or, if preferred, by a full cover surface of23·

·clipped grass.··So we have two reference conditions24·

·that are defined by the standardization.··And the25·



Page 3113

·intention was to help consolidate the user community·1·

·into using a fairly consistent set of equations or·2·

·reproducibility and accuracy.·3·

· · ·· Q.· ·And, again, these are the evapotranspiration·4·

·equations, namely the Penman-Monteith, that underlie·5·

·the testimony you're giving in this case?·6·

· · ·· A.· ·Yes.··They underlie the calculations used to·7·

·represent that near maximum evapotranspiration·8·

·condition I talked about that is utilized in·9·

·calibration of the METRIC process.10·

· · ·· Q.· ·Do you hold any positions currently at the11·

·national level?12·

· · ·· A.· ·Yes.··Currently I'm a member of the Landsat13·

·Science Team that's sponsored by the U.S. Geological14·

·Survey and by NASA.··I've been a member of that team15·

·since 2007.16·

· · · · · · I'm also on several national technical17·

·committees within the ASCE, the American Society of18·

·Civil Engineers.··One is the Technical Committee on19·

·Evapotranspiration from Irrigation and Hydrology --20·

·excuse me -- in Irrigation and Hydrology.21·

· · ·· Q.· ·We have identified as Montana Demonstrative22·

·Exhibit 5, a brochure.··Do you have a copy of that?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·What is this document, and how does it relate25·



Page 3114

·to your testimony in this case?·1·

· · ·· A.· ·This brochure was produced by NASA and the·2·

·USGS.··It was distributed in February of 2013 during·3·

·the launch of what we call Landsat 8.··Landsat 8 is the·4·

·follow-on mission of the Landsat series.··Its relevancy·5·

·is the Landsat satellite is the preferred satellite·6·

·that we use in the METRIC processing because it has a·7·

·small enough pixel size, 30 by 30 meters, to allow us·8·

·to evaluate evapotranspiration within a field, a·9·

·typical sized field.10·

· · · · · · The Landsat satellite has a thermal imager on11·

·board that provides us with an image of surface12·

·temperature.··And because of the close correspondence13·

·between temperature and evaporation, due to evaporative14·

·cooling, we're able to use that thermal signal to15·

·improve the accuracy of our ET estimates.16·

· · ·· Q.· ·Would you utilize the Demonstrative Exhibit17·

·No. 5 to briefly show us the Landsat hardware and the18·

·applications that are used in this case?19·

· · ·· A.· ·Yes.··On page 2 is a schematic showing the20·

·Landsat spacecraft.··The bottom part is just kind of21·

·the base itself with the batteries and such and22·

·communication system.23·

· · · · · · And then on top are two different imagers.24·

·What's called the operational land imager collects25·



Page 3115

·image information on about six different parts of the·1·

·spectrum in the -- what we call the reflected bands,·2·

·which are ones that the humans can see, red and green·3·

·and blue colors.··It also takes images of some of the·4·

·infrared that are invisible to humans but are reflected·5·

·from the surface.·6·

· · · · · · Then the second imager is what's called TIRS·7·

·or the thermal infrared sensor.··That's the sensor that·8·

·takes equivalent images of the earth but of temperature·9·

·with nearly the same resolution as the OLI -- that's10·

·the acronym for the operational land imager.11·

· · · · · · The thermal infrared sensor is on Landsat 812·

·primarily because of the water resources community.··We13·

·lobbied fairly extensively to get that placed back on14·

·Landsat 8 for continuity with previous Landsat missions15·

·and because it's so essential to evapotranspiration16·

·mapping.17·

· · ·· Q.· ·Are the wavelengths shown on page 3 there the18·

·wavelengths that are collected by the satellite?19·

· · ·· A.· ·Yes.··That graph, the X axis just kind of20·

·shows the wavelengths of various, what we called,21·

·bands.··They are essentially just layers of spectral22·

·information collected.23·

· · · · · · The bottom row of colored blocks is what is24·

·on the Landsat 7 satellite, which was launched in 1998.25·



Page 3116

·And then the top row is what's on the Landsat 8, which·1·

·was launched this year.··And bands 10 and 11 are the·2·

·thermal band.··And the axis is broken, but it's well·3·

·over into the thermal part of the solar spectrum.·4·

· · ·· Q.· ·All right.··And if you could page us through·5·

·to the part of this document that relates particularly·6·

·to the uses of Landsat satellites for purposes of your·7·

·testimony in this case.·8·

· · ·· A.· ·Yes.··Starting on page 25 is about an·9·

·eight-page highlight by NASA on the use of Landsat10·

·satellite imagery for mapping water use, or as we refer11·

·to it as evapotranspiration.··This is, perhaps, a12·

·useful document.··It's written in layman's terms, so it13·

·gives a nice overview both of the technology, but more14·

·importantly, perhaps, it lists some of the applications15·

·that we use, evapotranspiration mapping.16·

· · · · · · For example, I think the list starts on the17·

·bottom of page 29, where they say, you know, various18·

·states are using ET mapping to negotiate Native19·

·American water rights, water transfers from agriculture20·

·to urban.21·

· · · · · · We use it in Idaho and other places to help22·

·calibrate groundwater models by being able to establish23·

·the actual evapotranspiration.··We use it in Idaho and24·

·other places for water rights regulation.··And then in25·



Page 3117

·some basins of Idaho, it's been used to help reduce·1·

·irrigation diversions by providing better information·2·

·on consumptive use as part of the -- some endangered·3·

·salmon recovery programs.·4·

· · ·· Q.· ·And does that list extend over on to page 31?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·Is there some mention of you on that page?·7·

· · ·· A.· ·Yes.··As I said, I didn't expect them to use·8·

·a photo of me on a motorcycle.·9·

· · ·· Q.· ·In this section, there is mention of the10·

·METRIC model.··What is the METRIC model?··And perhaps11·

·you could start by explaining what that name is an12·

·acronym for.13·

· · ·· A.· ·Yes.··METRIC is an acronym, M-E-T-R-I-C, for14·

·Mapping Evapotranspiration at high Resolution using15·

·Internalized Calibration.16·

· · ·· Q.· ·And what is METRIC?17·

· · ·· A.· ·METRIC is a series of computer code that's18·

·used to transform the satellite images that we obtain19·

·from a satellite like Landsat.··And from that, we20·

·establish what we call a surface energy balance, which21·

·there's actually kind of a mock-up of that on page 2722·

·of this schematic.··Basically, we've been talking about23·

·evapotranspiration the last day.24·

· · · · · · But I think one point to make is that25·



Page 3118

·fortunately, the ET process is constrained by energy.·1·

·There's an upper limit.··If I want to convert, say,·2·

·this pitcher of liquid water into vapor, I've got to·3·

·add a substantial amount of energy to that.·4·

· · · · · · Same principle applies to evaporation from·5·

·crops, vegetation, or soil.··So I say that's fortunate·6·

·because there's an upper limit on evapotranspiration·7·

·that's constrained by environmental energy.··So it's to·8·

·our advantage both because it's sometimes easier to·9·

·estimate the energy availability for ET and estimate ET10·

·that way as to measure it.··Second advantage is we11·

·don't have plants pushing out tons of water and12·

·depleting the resource.13·

· · · · · · So getting back to METRIC, it establishes14·

·surface energy balance because a satellite is unable to15·

·see vapor.··It can only see the reflected solar16·

·radiation and the different colors, and then it can17·

·also see temperatures.··So we more or less estimate ET18·

·as a residual of the energy balance, where we estimate19·

·the total amount of energy available from the sun and20·

·from the atmosphere in terms of the form of radiation21·

·energy.··And we estimate as a function of the amount of22·

·vegetation cover on the ground, how much heat is23·

·flowing into the soil.··We also use a temperature image24·

·for that.25·



Page 3119

· · · · · · And then thirdly, we estimate the amount of·1·

·energy that is convected up into the air, what we call·2·

·the sensible heat flux.··And then, if we take those·3·

·three numbers, we take the total radiation energy RN,·4·

·and subtract off the heat conducted to the ground and·5·

·we subtract off the heat conducted into the near·6·

·surface air, what's missing?··The residual.··And we·7·

·presume it was absorbed by the liquid to vapor·8·

·conversion process of evapotranspiration.··Because·9·

·that's such a large energy user, generally, we can get10·

·quite accurate estimates of ET that way.11·

· · ·· Q.· ·Were you involved in the creation of the12·

·METRIC methodology?13·

· · ·· A.· ·Yes.··Starting in 1999, for the last 1414·

·years, my program at the University of Idaho has been15·

·evolving the METRIC process.16·

· · ·· Q.· ·Is the software that you developed in17·

·connection with the Ref-ET program for METRIC, is that18·

·Exhibit M29 in this case?19·

· · ·· A.· ·Well, yes.··M29 is a user manual for what we20·

·call Ref-ET software.··But Ref-ET is quite different21·

·from METRIC.··Ref-ET is a relatively simple software22·

·that just calibrates reference ET from weather data.23·

·For example, the Penman-Monteith we just talked about,24·

·the Ref-ET provides a standard means of taking weather25·



Page 3120

·data from any kind of database producing hourly or·1·

·daily or monthly estimates of Ref-ET.·2·

· · ·· Q.· ·Were you also involved in the development of·3·

·that program?·4·

· · ·· A.· ·Yes, I'm the writer of the code.··And it's --·5·

·I kept track for a while.··It's been downloaded in, I·6·

·think, over 100 nations, and thousands of users.··It's·7·

·been quite well received.·8·

· · ·· Q.· ·And did you -- was that used in the work on·9·

·this case?10·

· · ·· A.· ·Yes.··We use Reference or Ref-ET to take11·

·weather data, hourly and daily weather data, to12·

·calculate the Ref-ET and the Penman-Monteith, that in13·

·turn uses the calibration basis for converting a14·

·Landsat image into more or less a snapshot of15·

·evapotranspiration occurring at the time of the Landsat16·

·overpass.17·

· · · · · · And we also use the Reference ET to integrate18·

·between satellite images to account for day-to-day19·

·variation of ET caused by cloudiness or windiness,20·

·temperature, hot days, cool days.··So when we're21·

·finished, we rely on both the weather data and the22·

·satellite to produce evapotranspiration that23·

·incorporates both effects of localized weather and24·

·spatial variation caused by energy partitioning by a25·



Page 3121

·particular pixel.·1·

· · ·· Q.· ·Let me refer you to your expert report in·2·

·this case.··It's been labeled Exhibit M8.··Does your·3·

·curriculum vitae appear as part of that report?·4·

· · ·· A.· ·Yes.·5·

· · ·· Q.· ·I think it's listed as Attachment 1, or·6·

·Attachment A, to that report?·7·

· · ·· A.· ·Yes.··Beginning on MT14862.·8·

· · ·· Q.· ·And is that a relatively up-to-date·9·

·curriculum vitae?10·

· · ·· A.· ·It's about one year out of date now.··But,11·

·yeah, it's up to date through October of 2012.12·

· · ·· Q.· ·Okay.··And in addition to what's shown there,13·

·you've done coursework in irrigation and groundwater?14·

· · ·· A.· ·Yes.··I've had coursework in two or three15·

·courses in irrigation design and systems, plus I've16·

·taught irrigation design courses for 13 years while on17·

·faculty at Utah State University.··And then I've had18·

·three graduate courses in groundwater hydrology.19·

· · ·· Q.· ·Have you previously been qualified as an20·

·expert witness?21·

· · ·· A.· ·Yes.··I was qualified as an expert in -- I22·

·believe in evapotranspiration and irrigation water23·

·requirements and impacts of water quality on24·

·evapotranspiration in the Kansas v. Colorado course --25·



Page 3122

·excuse me, case.·1·

· · · · · · MR. DRAPER:··Your Honor, I'd offer Dr. Allen·2·

·as an expert in the areas of consumptive use of water·3·

·by crops and other vegetation, remote sensing of·4·

·evapotranspiration, and irrigation.·5·

· · · · · · SPECIAL MASTER:··Mr. Brown?·6·

· · · · · · MR. BROWN:··I have no objection.·7·

· · · · · · SPECIAL MASTER:··Thank you.··Then Dr. Allen·8·

·can proceed to testify as an expert on those subjects.·9·



· · ·· Q.· ·Dr. Allen, did you prepare an expert report12·

·in this case?13·

· · ·· A.· ·Yes, I did.14·

· · ·· Q.· ·Is that what has been labeled as Exhibit M8?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·And was this expert report, including all17·

·attachments, prepared by you or under your supervision?18·

· · ·· A.· ·Yes.19·

· · · · · · MR. DRAPER:··Your Honor, I would offer into20·

·evidence Exhibit M8.21·

· · · · · · SPECIAL MASTER:··Any objection?22·

· · · · · · MR. BROWN:··No.23·

· · · · · · SPECIAL MASTER:··Okay.··Then Exhibit M8 is24·

·admitted.25·



Page 3123

· · · · · · · · · · · (Exhibit M008 admitted.)·1·

· · · · · · MR. DRAPER:··Thank you.·2·


· · ·· Q.· ·Would you briefly describe the organization·4·

·of your expert report?·5·

· · ·· A.· ·Yes.··The main body of the report is·6·

·relatively short.··It's about 13 pages.··And that part·7·

·primarily describes how I sampled evapotranspiration·8·

·produced by the METRIC process for purposes of·9·

·aggregating evapotranspiration on a parcel by parcel10·

·basis to provide information for this case.11·

· · · · · · The bulk of the report, I believe it's12·

·Attachment D, is a report produced by the University of13·

·Idaho, under my direction, in 2011.··That Attachment 414·

·describes the application of the METRIC-tivity to the15·

·Tongue and Powder River Basin of Wyoming for the years16·

·2004 and 2006.17·

· · ·· Q.· ·In the text of your report -- and I'm looking18·

·past your qualifications, which I think you have at19·

·least referred to sufficiently -- you discussed several20·

·concepts that are important for purposes of your expert21·

·testimony.··I believe you have been here listening to22·

·some of the testimony.··So some of these terms are ones23·

·we may have heard.24·

· · · · · · From your point of view, would you give a25·



Page 3124

·brief description of each of the important terms or·1·

·concepts that are required for your expert work in this·2·

·case?·3·

· · ·· A.· ·Can you define what you mean by "concepts"?·4·

· · ·· Q.· ·Well, I'm looking particularly at page 3 of·5·

·your report.··Starting with the concept of·6·

·evapotranspiration, which we've heard something about.·7·

·But if you could briefly cover that from your point of·8·

·view so that we can be sure we're understanding that·9·

·concept as you apply it, and the continuing terms of10·

·potential ET, reference ET, crop coefficient, and the11·

·crop coefficient curve.12·

· · ·· A.· ·Okay.··Thank you.··Yeah.··As listed, starting13·

·on page 3, are some evapotranspiration terms just to14·

·provide some clarity.··Evapotranspiration is a commonly15·

·used term to describe the bulk transformation of liquid16·

·water to vapor.··It's the sum of two processes.··The17·

·evaporation generally refers to evaporation of water18·

·directly from the soil surface.··And then the T,19·

·transpiration, refers to the flow of water through a20·

·plant out the stomates of the leaves as what we call21·

·transpiration.··And the two processes combine in the22·

·near surface air layer.23·

· · · · · · Evaporation can also include an evaporation24·

·from the surface of leaves also.··So it's actually25·



Page 3125

·evaporation from any open surface.··And then·1·

·transpiration represents the extraction of water from·2·

·the soil and then vaporized internal to a leaf and then·3·

·released.··So that's the general term ET.·4·

· · · · · · And then potential ET is defined here for two·5·

·reasons:··one, to clarify what it is not, I suppose;·6·

·and then, secondly, to clarify what it is.·7·

·Twenty-three years ago, I did some of the literature·8·

·where we'll see the term potential ETS representing a·9·

·maximum ET as constrained by energy, very similar to10·

·what I previously defined as reference ET, what we11·

·currently define.12·

· · · · · · By definition, that potential or that upper13·

·limit is for a very wet surface.··So it would be, like,14·

·evaporation from a leaf that has drops of water on the15·

·outside so that there's no resistance to vapor flow to16·

·get that very maximum limit.··Well, that's a very17·

·difficult condition to both establish and maintain for18·

·purposes of measurement to collect data to calibrate19·

·equations.20·

· · · · · · So about 25 to 30 years ago, much of the ET21·

·community dropped the use of potential ET in that22·

·regard and adopted the use of the term reference ET23·

·where reference ET could be characterized by a24·

·particular type of vegetative surface, for example,25·



Page 3126

·alfalfa or grass.··So it's much more visual.··It's·1·

·relatively easy to establish a full cover of alfalfa·2·

·and to measure it.··And because alfalfa comes very·3·

·close to reaching that maximum limit, it provides a·4·

·very good reference ET to use to scale other crops·5·

·against.·6·

· · · · · · So now we currently use potential ET to·7·

·represent the upper limit of ET anticipated for any·8·

·particular type of crop given a well-watered condition.·9·

· · · · · · So we will -- the best way to potential ET,10·

·the traditional method, is to multiply, Mr. Draper11·

·indicated, the reference ET by the crop coefficient to12·

·produce a potential ET that we would expect to occur if13·

·we have a full water supply in the soil and typical14·

·density of vegetation and nutrient availability.15·

· · · · · · If we have conditions of water shortage or16·

·poor agronomic practices, then we would expect the17·

·actual ET to drop below that potential ET for any18·

·particular crop that we are estimating.19·

· · · · · · On page 4 is a definition for reference ET20·

·that I've already covered.··And then as I indicated,21·

·reference ET is indicated by a crop ET -- or excuse me,22·

·a crop coefficient to produce the potential ET for that23·

·crop.··Page 5, Figure 2 is a schematic out of the FAO5624·

·publication that shows a typical way of expressing a25·



Page 3127

·crop coefficient as linear combination.·1·

· · ·· Q.· ·What is Figure 2 that's shown on that page?·2·

· · ·· A.· ·Figure 2?·3·

· · ·· Q.· ·Yes.·4·

· · ·· A.· ·Yes, Figure 2 shows the progression and·5·

·evolution of the crop coefficient starting at the date·6·

·of planning.··That would be at the beginning of the X·7·

·axis.··And then, in fact, the risk management of the·8·

·plant there kind of shows how a plant would develop.·9·

·And then the dark line shows the equivalent crop10·

·coefficient that we would expect to see.11·

· · · · · · In this case, early in the season, of course,12·

·the plants are tiny, so most of the ET is from13·

·evaporation from the soil, which is a function of how14·

·frequently we have rainfall or how frequently we15·

·irrigate.··And in this case, in this example, it's .4.16·

· · · · · · And then as the plant begins to develop, the17·

·Kc increases, meaning the ET of that particular crop18·

·increases relative to the reference ET that we estimate19·

·from weather data.20·

· · · · · · We go through a period of what we call full21·

·cover where we reach a maximum level.··And then most22·

·annual crops will begin to mature and die.··The leaves23·

·turn brown at that point in time.··And then depending24·

·on when the crop is harvested, or there's a killing25·



Page 3128

·frost, will terminate the growing season.·1·

· · ·· Q.· ·How is ET measured?·2·

· · ·· A.· ·ET can be measured using three or four of the·3·

·more popular techniques.··Probably the first method·4·

·used for about the first hundred years of the modern·5·

·flow rate was what we call gravimetric sampling, where·6·

·we go and just poke holes in the soil and take soil·7·

·samples at various depths down through the root zone·8·

·where we know water is being extracted.··We'll measure·9·

·the water content of those samples and come back, say,10·

·ten days later and measure that profile again and take11·

·the difference in soil water.··And that difference is12·

·apparently the evapotranspiration.13·

· · · · · · We have to make adjustments for any flux of14·

·water out of the bottom of the root zone or any15·

·contribution of groundwater up into the root zone plus16·

·any additions of irrigation or precipitation.··So17·

·that's the traditional primary method.··But it's labor18·

·intensive and gives us only point measurements.19·

· · · · · · Probably what some people refer to as a gold20·

·standard of ET measurement is using what we call a21·

·lysimeter, l-y-s-i-m-e-t-e-r.··A lysimeter is22·

·essentially a large flower pot stuck in the ground,23·

·preferably suspended by a scale to weigh it.··And we24·

·simply just measure the weight of that lysimeter, the25·



Page 3129

·soil plus the plant over time.··And as the plant·1·

·transpires water, that pot weighs less and less.··And·2·

·so if we take the difference in mass or weight of that·3·

·lysimeter over time, we can get the evapotranspiration.·4·

· · · · · · That's a much more accurate measure of ET·5·

·than gravimetric for two reasons.··One is it's a·6·

·self-contained tank, so we don't have to worry about·7·

·percolation of water out of that tank or into the tank.·8·

·Secondly, with a weighing mechanism, we can actually·9·

·get hourly measurements of ET, so we can get very10·

·precise measurements.11·

· · · · · · And, of course, a lysimeter, as any measuring12·

·device, has to be maintained and handled correctly,13·

·including how the vegetation is managed inside the14·

·lysimeter versus outside the lysimeter because that15·

·lysimeter is representing evapotranspiration for an16·

·extensive field surface.··So we have to almost17·

·perfectly represent the same conditions inside that18·

·lysimeter.19·

· · · · · · And lysimeter data is the primary data that20·

·was used in establishing the Penman-Monteith21·

·calibration by ASCE for the alfalfa and grass22·

·references and to establish many of these crop23·

·coefficients that we looked at earlier.24·

· · · · · · Just briefly, two modern methods of measuring25·



Page 3130

·evapotranspiration are what we call the eddy covariance·1·

·method.··C-o-v-a-r-i-a-n-c-e.··Eddy, E-d-d-y.··And the·2·

·other one is what's called a Bowen ratio method.·3·

·B-o-w-e-n.··Those two methods sample the airstream·4·

·above the evaporating surface and give you a gradiant·5·

·of humidity and temperature or making very rapid·6·

·measurements of temperature and humidity.·7·

· · · · · · And the eddy covariance method, because the·8·

·air, you can't see it, but it's comprised of all these·9·

·eddies, we sample the upward and downward parts of10·

·these eddies and do some correlation work.··We can make11·

·a determination where the vapor flux must be.12·

· · ·· Q.· ·Now, with that background, how did you go13·

·about measuring ET for purposes of this case?14·

· · ·· A.· ·Well, we did not make any direct measurements15·

·of ET for this case.··We used the METRIC process to16·

·transform satellite images into ET estimates.17·

· · ·· Q.· ·Would you describe how that process works?18·

· · ·· A.· ·Yes.··Starting on page 7 is a brief19·

·description of how METRIC works.··As I described20·

·earlier, in equation 1 we estimated ET -- here ET is21·

·expressed as LE, meaning latent heat flux.··It's ET22·

·that instead of, say, inches per minute or millimeters23·

·per minute, we express it in terms of the energy24·

·consumed.··So it will be, for example, in watts per25·



Page 3131

·square meter or joules per square meter per second.·1·

·Because all of our terms in equation 1 are energy·2·

·terms.··So we express the energy required to evaporate·3·

·water as an energy term as well.··We call it LE.·4·

· · · · · · Equation 1 relates what I said, that we·5·

·estimate LE in METRIC by making our best estimates of·6·

·everything that we can measure or make good·7·

·approximations of from satellite, including the -- what·8·

·we call net radiation from the sun and the atmosphere.·9·

·G is the heat to the ground.··And then H is the10·

·sensible heat flux to the air.11·

· · ·· Q.· ·Now, just to step back for a minute, has the12·

·METRIC method been widely applied?13·

· · ·· A.· ·Yes.··We began development and applications14·

·in about the year 2000 in southern Idaho on the Eastern15·

·Snake Plain system.··Since that time, it has been16·

·applied by both my group at Kimberly, Idaho, plus other17·

·groups around the country that we have trained and18·

·collaborated with.··And probably -- well, there's a19·

·list on the bottom of page 6.··But it's nearly most of20·

·the 17 western states are using it in some form or21·

·using something similar to METRIC.22·

· · ·· Q.· ·Is the METRIC model a peer-reviewed model?23·

· · ·· A.· ·Yes, I believe Attachment 2 or 3 is a list of24·

·referee journal publications that either describe the25·



Page 3132

·METRIC model or describe applications of the model or·1·

·describe development of some components for the model.·2·

·Yes, it's Attachment 2.·3·

· · ·· Q.· ·Is Attachment 2 -- for the record, does it·4·

·begin on Montana Bates number page 14891?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·So it's been the subject of some 20-odd·7·

·peer-reviewed papers?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·When did you perform the METRIC analysis for10·

·the Tongue River Basin?11·

· · ·· A.· ·I don't recall exactly when we began.··But12·

·the report is dated -- let me confirm.··It's August of13·

·2011.14·

· · ·· Q.· ·Is that Attachment 4 to your report?15·

· · ·· A.· ·Yes.··Page 14895.16·

· · ·· Q.· ·How did you go about applying METRIC to this17·

·particular application?18·

· · ·· A.· ·We applied METRIC for two years of interest19·

·expressed by the state of Montana, which were years20·

·2004 and 2006.··At the time that we initiated the21·

·application, Montana was interested in being able to22·

·quantify ET in both the Powder and Tongue Basins.··So23·

·we made the application for both of those basins.24·

· · · · · · The figure that's on that page 14895 shows25·



Page 3133

·the coverage area by Landsat that we used.·1·

· · · · · · Landsat -- for a little bit of background·2·

·that might kind of help explain the process, Landsat is·3·

·what we call a Por-Pot, a polar-orbiting satellite.··It·4·

·orbits the earth from North Pole to South Pole.··And it·5·

·takes about 90 minutes per orbit.··Every orbit, it·6·

·takes a picture of the earth that's about 100 miles·7·

·wide.·8·

· · · · · · So on this figure, we can see actually parts·9·

·of two paths made by the satellite.··And as the10·

·satellite orbits the earth, the earth, of course, is11·

·turning 15 degrees per hour.··So every time Landsat12·

·comes down the face of the earth with this hundred mile13·

·swath, the earth is moved, so it takes a picture of a14·

·new part of the earth.··That may be four or five paths15·

·over from its previous path down.··So it just takes the16·

·stripes of the earth.··And every 16 days, it comes back17·

·to the original path.··So any place on earth will18·

·receive a picture from Landsat every 16 days.19·

· · ·· Q.· ·And as a matter of interest, these images are20·

·available to the public; isn't that right?21·

· · ·· A.· ·Yes.··The images are free, can be downloaded22·

·for free from the U.S. Geological Survey archive in23·

·Sioux Falls, South Dakota.24·

· · ·· Q.· ·Anybody in the world can do that?25·



Page 3134

· · ·· A.· ·Anyone in the world, yeah.··In fact, the·1·

·biggest user, I understand, is China, of Landsat·2·

·imagery.··There's a huge flux.··The second biggest user·3·

·is Google, Google Earth.··And I think there are just·4·

·users that are substantial users also.·5·

· · · · · · So we potentially have an image for any·6·

·particular point on earth.··The paths do overlap,·7·

·especially on the northern latitudes as we get closer·8·

·to the pole.··So there is some overlap between the two·9·

·paths, probably about 20 miles' worth.10·

· · · · · · So what we did is we looked through the11·

·archive, and we selected those images that were12·

·primarily cloud free.··We were unable to process a13·

·pixel for ET if there's a cloud above it.··For one, we14·

·can't see through it.··And, secondly, the thermal15·

·imager will measure the temperature of the cloud rather16·

·than the temperature of the surface.··So it gives us a17·

·very raw idea.18·

· · · · · · Even this photo that's on the cover here has19·

·a small strip of clouds close to the Montana border.20·

·What we do in those cases is we process the image, and21·

·then we come back later, and we mask out where the22·

·clouds are and then substitute information for that23·

·area from adjoining images in time, you know, the next24·

·image 16 days later and then 16 days earlier.··We use25·



Page 3135

·an interpolation technique that attempts to form the·1·

·evolution of vegetation and evapotranspiration.·2·

· · · · · · Then we end with a complete image for each·3·

·date.··When we're finished with that, we have a series·4·

·of essentially snapshots of evapotranspiration as it·5·

·occurred on the day of the satellite image.··Then they·6·

·interpolate between each of those images the relative·7·

·ET rate.··So we take the ET from the snapshot, divide·8·

·by that reference ET to get essentially a crop·9·

·coefficient, if you will, for each pixel.··And then we10·

·use a cubic spline to interpolate between the images to11·

·develop a relatively smooth transition between image12·

·date and image date.13·

· · · · · · So in the end, we end up with a value for14·

·every day of the year or at least of the growing15·

·season.··That value is a relative ET.··And then we16·

·multiply that by the reference ET for each day as17·

·determined from weather data.18·

· · · · · · When we're finished, then, we will sum19·

·evapotranspiration daily over the course of a month20·

·generally to produce monthly evapotranspiration and21·

·then generally for the growing season.··In this case it22·

·was April through October.··Then if we sum the monthly23·

·ET for April through October, we will determine what we24·

·call a growing season evapotranspiration.25·



Page 3136

· · ·· Q.· ·And did you directly oversee the work on this·1·

·project?·2·

· · ·· A.· ·Yes, I did.·3·

· · ·· Q.· ·In particular, did you review the satellite·4·

·images yourself?·5·

· · ·· A.· ·Yes, I did.··The calibration for each image,·6·

·I reviewed.·7·

· · ·· Q.· ·And were there local weather stations that·8·

·were installed as part of this project?·9·

· · ·· A.· ·Yes.··Because the estimation of reference ET10·

·is quite important for both calibration of METRIC and11·

·also for the time integration between images, it's12·

·important that we have a very representative estimate13·

·of reference ET.14·

· · · · · · The reference ET method from ASCE15·

·Penman-Monteith is calibrated to make the most accurate16·

·estimates using weather data that are collected over an17·

·agricultural setting.··And the reason for that is the18·

·amount of evaporation at the surface will impact the19·

·temperature and humidity of the air immediately over20·

·that surface, say, up to a height of 5, 10 meters.21·

·And, you know, one can see that by just contrasting the22·

·temperature of air a few meters over an agricultural23·

·area with the temperature you would sense in the middle24·

·of an urban area that's all concrete where all of the25·



Page 3137

·energy is transferred into sensible heating of the air.·1·

· · · · · · So the equation is calibrated.··And in·2·

·anticipation of receiving a measurement of air·3·

·temperature and humidity that occurs over the same·4·

·surface for which it's making the estimate, which in·5·

·our case is an agricultural field, that's transpiring.·6·

·So everything is an equilibrium.·7·

· · · · · · So to ascertain what that type of weather·8·

·would be like in Wyoming, there are weather stations at·9·

·the Sheridan, Gillette, and Buffalo airports.··They're10·

·called an ASOS station.··They collect hourly data;11·

·humidity, temperature, and wind speed data.··We were12·

·uncertain on whether or not those stations, because13·

·they are located at an airport that is typically14·

·surrounded by some nonirrigated areas, might have some15·

·biases where the temperature might be measured higher16·

·than what it would be out in an irrigated area.··It17·

·might be somewhat lower.18·

· · · · · · So in 2008, we assisted the state of Montana19·

·in locating three automated electronic weather stations20·

·in parts of the Powder and Tongue River Basins.··One21·

·was located about 2 miles east of Dayton on the Tongue22·

·River in the middle of an alfalfa field.··One was23·

·located east of Ucross on the Powder River, southeast24·

·of Sheridan, again, in an alfalfa field.··And then the25·



Page 3138

·third was located near Sussex, which is southeast of·1·

·Buffalo.··And that, I believe, was alfalfa or grass·2·

·pasture also.·3·

· · · · · · And so those systems collected hourly weather·4·

·data, solar radiation, temperature, humidity, and wind·5·

·speed from 2008 until 2013.·6·

· · · · · · As part of this METRIC study, then, to·7·

·determine -- and, again, to go back, we processed years·8·

·2004 and 2006.··We did not have those agriculture·9·

·weather stations for those two years.··So we had to use10·

·the airport weather data.··But we wanted to determine,11·

·one, if we would be able to use the airport data to12·

·represent conditions in the agricultural area and,13·

·secondly, if there was any type of adjustment, bias14·

·adjustment to make to the airport data to make it look15·

·more like the data one would have collected in 2004 and16·

·2006 over the irrigated areas.17·

· · · · · · So part of the study was to make some fairly18·

·intensive comparisons between the three agricultural19·

·stations and the three airport stations for years 2008,20·

·'9, and '10, I believe.··And part of the attachment for21·

·the report summarizes those comparisons and the22·

·determination of transfer functions that would take the23·

·airport measurements and make them look more like what24·

·one would have measured over the agricultural settings.25·



Page 3139

· · · · · · I might add that the required adjustments·1·

·were relatively small.··And if one looks at a satellite·2·

·image of the Sheridan airport, for example, it -- you·3·

·can see that because of some irrigation that is up to·4·

·the west of Sheridan, upwind, that the data collected·5·

·at the airport are relatively well conditioned in·6·

·representing the weather data you would find over a·7·

·well-watered type of surface.··But we did make the·8·

·adjustments to fine-tune our estimates of reference ET.·9·

· · ·· Q.· ·Would you then briefly describe how you10·

·produced the initial evapotranspiration maps and how11·

·you analyzed those?12·

· · ·· A.· ·Okay.··How we produced the evapotranspiration13·

·maps?14·

· · ·· Q.· ·The initial evapotranspiration maps as15·

·described, I think in brief, on pages 8 and 9 of your16·

·report.17·

· · ·· A.· ·Yes.··Pages 8 and 9 give a summary of the --18·

·how METRIC was applied.··As I described, we obtained19·

·free images from the USGS EROS data center via the20·

·Internet.21·

· · · · · · We were able to produce about eight or nine22·

·images for each of the two years, that were relatively23·

·cloud free.··For each of the two paths we call them --24·

·the one path covered all of the Tongue River Basin, and25·



Page 3140

·then the path to the east of that covered the Powder·1·

·and part of the Tongue River.·2·

· · · · · · We applied the METRIC processing software.·3·

·We used what's called the ERDAS Imagine Model Maker·4·

·image processing system.··That's a commercial software·5·

·that's essentially a vehicle that facilitates then the·6·

·development of unique code to make the calculations.·7·

· · · · · · And in that code is something that we have·8·

·been developing over the past decade at the University·9·

·of Idaho.··Using that equation 1 we looked at and where10·

·H is estimated using equation 2 on page 8, that11·

·equation is just to express how we convert surface12·

·temperature into an estimate of sensible heat flux.··I13·

·can define the terms if desired, or we can skip those14·

·details.15·

· · · · · · SPECIAL MASTER:··I think at the moment it's16·

·fine to skip them.17·

· · · · · · THE WITNESS:··Okay.··And some of the papers18·

·provide full detail on the method.19·

· · · · · · Using the energy balance, we obtained the20·

·maps of evapotranspiration on a 30-meter by 30-meter21·

·pixel basis for each of the scenes.··We then divided22·

·that ET by the daily reference ET that was produced by23·

·ASCE standards Penman-Monteith to produce a daily24·

·estimate of evapotranspiration ratio for each day and25·



Page 3141

·each pixel.·1·

· · · · · · Then we applied a -- as I described, a cubic·2·

·spline to develop a smooth daily curve between each·3·

·satellite date.··From that, we calculated ET for each·4·

·day, then, using daily reference ET.··Some of those to·5·

·produce monthly ET.·6·


· · ·· Q.· ·You've referred to a cubic spline.··Would you·8·

·briefly define what you mean by that?·9·

· · ·· A.· ·Cubic spline is a numerical technique for10·

·interpolating between two points.··The simplest way to11·

·interpolate between two points is just to draw a12·

·straight line and then we put a value in between those13·

·two points.··We simply pick off a linear value.14·

· · · · · · A cubic spline will take four points in15·

·succession.··And it's a little bit like a ruler16·

·that's -- a plastic ruler that you can bend.··And the17·

·mathematics will bend that ruler or that line so it18·

·fits all four points and provides a continuous function19·

·at all four points.··And we prefer to use that over20·

·linear interpolation because it tends to follow the21·

·progressive evolution of vegetation development and22·

·evapotranspiration.23·

· · ·· Q.· ·And what was the next step in your analysis?24·

· · ·· A.· ·Well, that's the completion, is the25·



Page 3142

·production of monthly and seasonal evapotranspiration.·1·

· · · · · · An intermediate step, however, that I·2·

·mentioned, is to mitigate for clouds through the cloud·3·

·masking and filling in using data from adjacent dates·4·

·in time.·5·

· · ·· Q.· ·Would you then describe what you're depicting·6·

·on pages 11 and 12 of your report in Figures 3, 4, 5?·7·

· · ·· A.· ·Yes.··Following that --·8·

· · · · · · SPECIAL MASTER:··Can I just interrupt you for·9·

·a second.··The slide that you had up a moment ago or10·

·the page that they had up a moment ago, where is that11·

·from?12·

· · · · · · THE WITNESS:··Oh, with the crop coefficient?13·

· · · · · · SPECIAL MASTER:··Yeah, actually showed a14·

·moment ago the -- now I'm trying to find the term here.15·

·Oh, there it is.··So it's on page 30, okay.16·

· · · · · · THE WITNESS:··On page 30 --17·

· · · · · · SPECIAL MASTER:··Yeah, so that just shows the18·

·spline.··I just wasn't sure where that was.··Thanks.19·

· · · · · · THE WITNESS:··Oh, yes, yes.··Thank you for20·

·finding that.··Yeah, that shows the application of the21·

·cubic spline.22·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.23·


· · ·· Q.· ·And that's page 30 in Attachment 4; correct?25·



Page 3143

· · ·· A.· ·Yes.··Page 14928.·1·

· · ·· Q.· ·So with whatever background you need to·2·

·provide, if you'd describe what's shown in Figures 3,·3·

·4, and 5.··And this is, for reference, page 11 of the·4·

·main report, Montana Bates No. 14858.·5·

· · ·· A.· ·Yes.··Up through page 10 is the summary of·6·

·the work done by the University of Idaho under my·7·

·direction.··That report and products were then·8·

·transferred to the state of Montana.·9·

· · · · · · Then as this case developed, I was asked to10·

·assist with both advising in how to handle the11·

·evapotranspiration produced by the University and also12·

·to assist with the summary and aggregation of those ET13·

·data for some of the irrigated parcels along the Tongue14·

·River.··And I perform that work outside of the15·

·University of Idaho as a private consultant.16·

· · · · · · So beginning on page 11, those two figures17·

·show for the Tongue River Basin, the top figure is for18·

·year 2004, the bottom for 2006.··They show the seasonal19·

·evapotranspiration within an irrigated parcel, meaning20·

·an irrigated field such as a center pivot or any field21·

·that has been delineated as a parcel growing a single22·

·crop and under the management of a single user.23·

· · · · · · That GIS layer was provided to me by Spronk24·

·Water Engineers.25·



Page 3144

· · · · · · For the Tongue Basin, there were about 2600·1·

·parcels identified.··So I entered those parcels into a·2·

·geographical informational system, GIS, and then·3·

·brought in the METRIC evapotranspiration product as an·4·

·overlay.··And using some statistical tools within the·5·

·Arc-GIS software, I aggregated the ET within each of·6·

·those parcels and produced an average April through·7·

·October seasonal ET, expressed here as inches per·8·

·growing season.·9·

· · · · · · So these graphs just show -- again, each10·

·symbol represents one parcel.··And the X axis is just11·

·simply showing a progression of parcels from 1 through12·

·about 2700.13·

· · · · · · And what it shows is that there were some14·

·parcels that had, according to METRIC,15·

·evapotranspiration as high as 35 inches for the April16·

·through October period in both years, up to 40 inches17·

·in 2006 for a few fields.··And other parcels sampled18·

·had ET as low as below 10 inches for that same period19·

·with a fairly substantial distribution of ET in between20·

·those two end points.21·

· · · · · · Then the dark horizontal line, which has a22·

·value of about 13 inches for 2004 and about 12 inches23·

·for 2006, is my estimate of the ET expected from a24·

·completely nonirrigated condition.··That was relying25·



Page 3145

·only upon precipitation.··It would be ET expected from,·1·

·say, an agricultural condition but in the absence of·2·

·irrigation or any subirrigation.·3·

· · · · · · And that horizontal line represents a single·4·

·value used for the complete domain of the Tongue Basin·5·

·parcels.··And it was developed by sampling, I believe·6·

·it was, 23 parcels, approximately 40-acre parcels that·7·

·were distributed throughout the Tongue Basin relatively·8·

·close to the irrigated areas but oftentimes up out of·9·

·the incised valley to where there was some rain-fed10·

·agriculture.11·

· · · · · · And to select those areas, I used what's12·

·called the Cropland Data Layer.··It's a database13·

·produced by the USDA FAS.··It stands for Farm Ag14·

·Services, I believe.··They produced statistics on15·

·spatial distribution of crops by year for the entire16·

·United States.··And I selected a crop type from the FAS17·

·and the Cropland Data Layer, CDL, that was for18·

·nonirrigated hay.19·

· · · · · · And I selected that to -- because most of the20·

·lands up outside of the irrigated areas are classified21·

·as rangeland or brush.··By selecting these areas that22·

·were indicated to be other hay, it was likely that they23·

·were more in a condition similar to what irrigated hay24·

·would look like, except that they were relying solely25·



Page 3146

·on rainfall for production.·1·

· · · · · · And the average of those 23 fields was·2·

·approximately 13 inches in 2004 and 12 inches in 2006,·3·

·which is quite similar to the precipitation amounts at·4·

·Sheridan for those years.·5·

· · · · · · MR. DRAPER:··Your Honor, this might be a good·6·

·point before we go on to the next figure to take a·7·

·short break.·8·

· · · · · · SPECIAL MASTER:··I think that sounds fine.·9·

·And I'm looking down at the court reporter.··Do you10·

·want ten minutes?··So we'll take a ten-minute break11·

·now, and we will come back at, I guess -- well, ten12·

·minutes by whatever time you have on your watch.··2:33.13·

· · · · · · · · · · · (Recess taken 2:33 to 2:4314·

· · · · · · · · · · · p.m., November 13, 2013)15·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be16·

·seated.17·


· · ·· Q.· ·Doctor, I think you've now described the19·

·Figures 3 and 4 on page 11 of your report.··Would you20·

·also describe for us the Figure 5 that appears on page21·

·12?22·

· · ·· A.· ·Yes.··Figure 5 is included mostly for23·

·illustrative purposes.··It shows monthly -- well, ET on24·

·a monthly basis for each of those 200-some parcels --25·



Page 3147

·excuse me, 2600.··But I think I only plotted 250 here·1·

·to reduce the density.··And the ET expressed as that·2·

·crop coefficient, which we get when we divide the ET by·3·

·the reference ET to, normalizes it.··So you could think·4·

·of the crop coefficient as a reference ET generally·5·

·varying between zero and one where one would indicate·6·

·that crop has the same ET as alfalfa for that month.·7·

· · · · · · The lines connect a value for a particular·8·

·parcel from month to month.··And it's not important to·9·

·follow the lines.··But it's just useful to appreciate10·

·the variability between fields and then how the crop11·

·coefficient can vary from month to month, for example,12·

·with alfalfa as the crop, it may be harvested in June13·

·and then would regrow.··We characteristically see a14·

·crop coefficient that increases and decreases with each15·

·month.16·

· · · · · · So this just gives an idea of the type of17·

·variation that we saw amongst various parcels along the18·

·Tongue River.19·

· · ·· Q.· ·Now, this information that you've developed20·

·using methods described in this report, are those21·

·methods described in more detail in Attachment 4?22·

· · ·· A.· ·Yes.··The application of METRIC is described23·

·in Attachment 4, you know, to the Tongue and Powder24·

·River areas.··The actual process or procedure for25·



Page 3148

·applying METRIC is summarized in the users manual or·1·

·Applications Manual that we have.··And that's M52.·2·

· · ·· Q.· ·Exhibit M52 in this proceeding?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·And you used that manual and followed that·5·

·manual, and your team used it in preparing the evidence·6·

·in this case?·7·

· · ·· A.· ·Yes.·8·

· · ·· Q.· ·In that regard, I'd like to refer to several·9·

·other exhibits and ask you about those as a group.10·

·Exhibits M46, M47, and M48, what are those exhibits,11·

·and what is their relation to your work in this case?12·

· · · · · · And if I can be a little bit more specific.13·

·The M46 is the Allen, et al. paper entitled "A14·

·Landsat-based energy balance and evapotranspiration15·

·model in Western US water rights regulation and16·

·planning."17·

· · · · · · M47 is Allen, et al., entitled18·

·Satellite-Based Energy Balance for Mapping19·

·Evapotranspiration with Internalized Calibration20·

·(METRIC).21·

· · · · · · And, finally, M48 is also Allen, et al. with22·

·a title largely similar to the one I just read except23·

·it is distinguished by being the Applications, whereas,24·

·the previous one was the Model.25·



Page 3149

· · · · · · If that gives you enough description to·1·

·understand which exhibit is which, I would ask you,·2·

·again, what relation did those papers play to the·3·

·description or implementation of the METRIC model in·4·

·this case?·5·

· · ·· A.· ·Exhibit M47, as noted by the title, describes·6·

·the METRIC model.··It provides a detailed list of the·7·

·various equations used to estimate the energy balance·8·

·components used to determine evapotranspiration.·9·

· · · · · · The M48 exhibit is a referee journal paper.10·

·It's the second of the series between model and11·

·applications.··And it summarizes some of the first12·

·applications of METRIC in Idaho and New Mexico,13·

·primarily, and makes some comparisons between estimates14·

·biometric and ground measurements.15·

· · · · · · The M49, is it?··No, excuse me.··M46 is a16·

·similar publication that is two years earlier than the17·

·2007 publications.··That, again, gives a list of the18·

·primary equations used in METRIC and some of the early19·

·applications along with some of the accuracy estimates.20·

· · · · · · These papers provide the basis for the21·

·Applications Manual.··That's Exhibit M -- excuse me.22·

·Exhibit M52.23·

· · ·· Q.· ·And are there described in those sources,24·

·M46, 47, and 48, the basis for your application and25·



Page 3150

·your reliance on the METRIC method applied in this·1·

·case?·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·And, again, without going into it in any·4·

·detail, Attachment 4 to your report describes the·5·

·detailed application of the METRIC method and the·6·

·Landsat data to determine evapotranspiration values in·7·

·this case?·8·

· · ·· A.· ·Yes.··And the attachment would include any·9·

·specific establishment of coefficients or further10·

·development of algorithms to fit any unique conditions11·

·we found in the Tongue and Powder Basins.12·

· · ·· Q.· ·What did you do with the results of your work13·

·in this case?··Did you provide those, for instance, to14·

·Mr. Book?15·

· · ·· A.· ·Yes.··We provided electronic files comprised16·

·of the evapotranspiration images for both monthly and17·

·growing season ET for years 2004 and 2006 to the18·

·Department of Natural Resources Conservation in Helena.19·

·And then I believe they distributed those data to20·

·Spronk Water Engineers.21·

· · ·· Q.· ·And are you aware of how Spronk Water22·

·Engineers used your data?23·

· · ·· A.· ·Yes, in a general sense.24·

· · ·· Q.· ·And did you determine whether it was used25·



Page 3151

·consistent with how it should be, in your view?·1·

· · ·· A.· ·Yes, I believe their use was consistent.·2·

· · ·· Q.· ·Okay.·3·

· · ·· A.· ·And I might add, it was the University of·4·

·Idaho METRIC product that was transferred to the state·5·

·of Montana.··I believe I may have transferred the·6·

·aggregation of ET over parcels directly to Spronk Water·7·

·Engineers.·8·

· · ·· Q.· ·And do the values that you provided in this·9·

·case represent, in your view, reliable values for the10·

·evapotranspiration values that you quantified?11·

· · ·· A.· ·Yes.··Within the uncertainty of the METRIC12·

·process, yes.13·

· · ·· Q.· ·And you've been here also for the testimony14·

·of Dr. Schreüder today and yesterday?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·Did you hear his testimony with regard to the17·

·use of your results in this case?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·And was his use of those results appropriate,20·

·in your view?21·

· · ·· A.· ·Well, yes and no.··Yes, in that it looks like22·

·he correctly aggregated the evapotranspiration over the23·

·area, the stream cells lying along the Tongue River.24·

·What I don't feel is appropriate, however, is his use25·



Page 3152

·of the evapotranspiration data from METRIC to develop,·1·

·I believe, what he described as the ratio of ET from·2·

·groundwater to accretion of groundwater to the stream.·3·

·I believe the ratio was 3 to 1.··I don't follow or·4·

·agree with the logic that Dr. Schreüder used in that·5·

·process.·6·

· · ·· Q.· ·Okay.·7·

· · · · · · MR. DRAPER:··With that, Your Honor, I think·8·

·I'm ready to move the admission of some of the exhibits·9·

·that we've referred to.10·

· · · · · · SPECIAL MASTER:··Okay.··And I missed, I11·

·think, the number of the first exhibit.··So we should12·

·probably go over them, the ones that I know I got and13·

·the one I say I'm missing, the first one.··I have M56,14·

·M53, M29, M52, M46, M47, M48.··So what am I missing?15·

· · · · · · MR. DRAPER:··Did you mention M31?16·

· · · · · · SPECIAL MASTER:··No, that's what I thought17·

·was the first one.18·

· · · · · · MR. DRAPER:··Yes.··We would move the19·

·admission of those exhibits for the purpose of20·

·providing the basis for Dr. Allen's opinions in this21·

·case and describing the processes that he pursued in22·

·developing his expert opinions.23·

· · · · · · SPECIAL MASTER:··Mr. Brown?24·

· · · · · · MR. BROWN:··No objection to the extent he25·



Page 3153

·referred or relied upon them.·1·

· · · · · · SPECIAL MASTER:··Okay.··So then those·2·

·exhibits, again, M31, M56, M53, M29, M52, and M46·3·

·through M48, are all admitted for the limited purpose·4·

·of showing what the witness relied upon in illustrating·5·

·the nature of the process that Dr. Allen went through·6·

·and the University of Idaho did under Dr. Allen's·7·

·supervision in producing the results of the expert·8·

·report.·9·

· · · · · · · · · · · (Exhibits M29, M31, M46, M47,10·

· · · · · · · · · · · M48, M52, M53, M56 admitted.)11·


· · · · · · THE WITNESS:··Excuse me.··M8, does that need13·

·to be included?14·

· · · · · · SPECIAL MASTER:··No.··M8, I believe, was15·

·already admitted.16·

· · · · · · MR. DRAPER:··Yes.17·

· · · · · · SPECIAL MASTER:··Is that correct?··Yes,18·

·that's the most important one.19·

· · · · · · MR. DRAPER:··Yes, thank you very much.20·

· · · · · · SPECIAL MASTER:··So off the record for just a21·

·second.22·

· · · · · · · · · · · (Discussion held off the23·

· · · · · · · · · · · record.)24·

· · · · · · SPECIAL MASTER:··Let's go back on the record25·



Page 3154

·for one second.··I might have missed something, but I·1·

·just wanted to know.··There is the second analysis,·2·

·Mr. Draper, the bottom of page 12 and the top of page·3·

·13, with respect to the determination of background ET·4·

·and the absence of any irrigation.··And I recall the·5·

·discussion of the calculation of ET for lands that were·6·

·rain fed but not irrigated.··And this struck me as a·7·

·separate one.··Did we cover that?·8·

· · · · · · THE WITNESS:··Yes.··That's what this·9·

·describes.10·

· · · · · · SPECIAL MASTER:··Okay.··So it's exactly the11·

·same?12·

· · · · · · THE WITNESS:··It is that analysis.13·

· · · · · · SPECIAL MASTER:··Okay.··I just wanted to --14·

·okay.··So the analysis, then, that you mention on --15·

· · · · · · MR. DRAPER:··He described that in connection16·

·with the line on Figures 3 and 4 that shows the17·

·background ET.··And I think at that point he explained18·

·how he obtained that value.19·

· · · · · · SPECIAL MASTER:··That's right.··So and that's20·

·discussed at page 10.··But that's basically the same21·

·analysis as the one you describe at pages 12 to 13?22·

· · · · · · THE WITNESS:··Yes.··The page 12 describes the23·

·derivation of those two horizontal lines.24·

· · · · · · SPECIAL MASTER:··Right.··Okay.··Thanks.25·


RICHARD ALLEN - November 13, 2013Cross-Examination by Mr. Brown

Page 3155

· · · · · · Mr. Brown?·1·



· · ·· Q.· ·Hello, Dr. Allen.·4·

· · ·· A.· ·Hello.·5·

· · ·· Q.· ·Good to see you again.·6·

· · ·· A.· ·Thank you.·7·

· · ·· Q.· ·Thanks for making the trip out from Idaho --·8·

·or from wherever.··From what I understand, you're all·9·

·over the place most of the time, aren't you?10·

· · ·· A.· ·Yeah.··I came from Nebraska this time.11·

· · ·· Q.· ·Let's start with years of focus that you made12·

·in this case as part of your analysis.··And Montana13·

·asked you to sample the growing season14·

·evapotranspiration for irrigated acres within the15·

·Tongue River Basin in Wyoming; right?16·

· · ·· A.· ·Yes.··Well, they asked us to process METRIC17·

·for that area with focus on the irrigated areas, but18·

·with the understanding that we'd process the entire19·

·domain of the images.20·

· · ·· Q.· ·So you processed the entire rows and paths of21·

·the Landsat images that are in your report?22·

· · ·· A.· ·Yes.23·

· · ·· Q.· ·Okay.··And they asked you to do that analysis24·

·for the years 2004 and 2006; right?25·



Page 3156

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·And if there are sufficient cloud-free·2·

·Landsat images available to you, you could have·3·

·performed that analysis for any year between 2000 and·4·

·2006; right?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·And if there's also sufficient weather data·7·

·available, you could have performed that analysis for·8·

·any year since 1984; right?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·And that's when Landsat 5 was launched?11·

· · ·· A.· ·Yes.12·

· · ·· Q.· ·That was the first one; right?13·

· · ·· A.· ·That was the first -- well, it's the fifth14·

·Landsat, but it was the first one that contained a15·

·thermal imager that we need for the METRIC application.16·

· · ·· Q.· ·And Montana didn't ask you to perform your17·

·analysis, I think you already said, for any year other18·

·than 2004 and 2006; right?19·


· · ·· Q.· ·Let's talk a little bit more about background21·

·ET and the two figures the Special Master just briefly22·

·asked you about.··I think they are Figures 3 and 4 on23·

·page 11.24·

· · · · · · MR. BROWN:··Could we ask the clerk to toggle25·



Page 3157

·over to the defense table?·1·

· · · · · · Thank you.·2·


· · ·· Q.· ·So you said as part of your analysis, you·4·

·came up with an estimated background ET; right?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·And your estimate represents ET from an·7·

·agriculture field that received rainfall only; right?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·And you figured out whether or not it was an10·

·agricultural field by looking at the database that you11·

·mentioned in your earlier testimony?12·

· · ·· A.· ·Yes.··The Cropland Data Layer.13·

· · ·· Q.· ·And your background ET estimate is meant to14·

·represent ET from rainfall; right?15·

· · ·· A.· ·Yes.··Well, for nonirrigated conditions.16·

· · ·· Q.· ·Sure.··But it's meant to just identify17·

·evapotranspiration that occurs as a result of rainfall?18·

· · ·· A.· ·Well, no.··I don't say that in the report.··I19·

·say in the absence of irrigation, I believe.··Because a20·

·few of the fields, I purposely tried to stay up outside21·

·of the valley to avoid those areas that are not22·

·classified as irrigated but may have some subirrigation23·

·component or have some repair in vegetation that's fed24·

·with water from the stream, with the idea that many of25·



Page 3158

·the irrigated fields in the -- along the Tongue River,·1·

·we don't know how much subirrigation component they·2·

·might receive.·3·

· · · · · · So just as more or less a minimum baseline·4·

·for ET that we know is primarily produced by·5·

·precipitation, that's what this represents.·6·

· · ·· Q.· ·And I did have some questions for you with·7·

·regard to the riparian areas.··So when you were·8·

·analyzing or trying to come up with a figure or an·9·

·estimate for background ET, you tried to stay away from10·

·the riparian areas to avoid the influence of11·

·subirrigation; right?12·

· · ·· A.· ·Yes, for the most part.··Although, there were13·

·3 or 4 of the 23 parcels that were down and adjacent to14·

·these irrigated areas.··And that did have higher ET15·

·than the average values shown here.16·

· · ·· Q.· ·But you didn't make any investigation with17·

·regard to the potential of subirrigation with regard to18·

·the parcel you gave to Mr. Book; right?19·

· · ·· A.· ·Well, not on the ground.··But I did look at20·

·aerial photography and satellite imagery to make note21·

·of the parcels that appeared to be lying below22·

·irrigation ditches, for example, that might have access23·

·to seepage water, you know, that would create a24·

·subirrigation state.25·



Page 3159

· · ·· Q.· ·And I think maybe we're talking about a·1·

·couple of different things.··You did that in relation·2·

·to trying to figure out your background ET estimate;·3·

·right?·4·

· · ·· A.· ·Yes.·5·

· · ·· Q.· ·But with regard to the parcels, the specific·6·

·parcels or the polygons that you provided -- or that·7·

·Mr. Book first provided you and then you gave back, you·8·

·didn't do any investigation with regard to whether·9·

·there was subirrigation influence in those parcels?10·

· · ·· A.· ·No, I did not.··You're speaking of the 2600?11·

· · ·· Q.· ·Absolutely.12·

· · ·· A.· ·No, I did not.13·

· · ·· Q.· ·You jumped ahead, so I tried to jump ahead14·

·and got all mixed up.··So I'm sorry.15·

· · · · · · Moving back to your determination of16·

·background ET, I think you said you identified 2317·

·pieces of land that you -- were identified as18·

·agricultural, but you didn't think were getting19·

·irrigation water; right?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·And then you just averaged ET that you22·

·calculated from those 23 pieces to estimate the23·

·background ET?24·

· · ·· A.· ·Yes.25·



Page 3160

· · ·· Q.· ·And that, your background ET averages, as·1·

·identified in Figures 3 and 4, are the average for the·2·

·entire Tongue River Basin; right?·3·

· · ·· A.· ·Well, they are averages for the 23 parcels·4·

·that were distributed primarily over the Tongue Basin.·5·

· · ·· Q.· ·You meant for that background to apply to the·6·

·entire basin, though; right?·7·

· · ·· A.· ·Yes, it was applied -- my understanding is·8·

·Mr. Book applied it to the 2600 parcels.·9·

· · ·· Q.· ·And I think you said for 2004, the estimated10·

·background ET as shown in your figure is about11·

·13 inches; right?12·

· · ·· A.· ·Yes.13·

· · ·· Q.· ·And for 2006, the background ET estimate you14·

·had was about 12 inches; right?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·And the plotted lines -- excuse me, the17·

·plotted points in Figures 3 and 4 represent potentially18·

·irrigated parcels in the Tongue River Basin for each of19·

·those years; right?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·And Mr. Book is the one that gave you the22·

·description of those parcels; right?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·With regard to those parcels, I think you25·



Page 3161

·told me in your deposition that the higher the actual·1·

·ET calculated for each individual parcel, the stronger·2·

·the indication that it was irrigated; right?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·And, for example, in 2004, if you'd picked·5·

·one of these parcels that was around 35 inches, that's·6·

·a very strong indication that it received irrigation·7·

·water; right?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·And the lower the actual ET calculated for10·

·each individual parcel, the more uncertainty it is that11·

·that parcel was irrigated; right?12·

· · ·· A.· ·Yes, I would say it would be less certain.13·

· · ·· Q.· ·So for example, in 2004, if you picked a14·

·parcel that was 18 inches, for example, of ET, it would15·

·be less certain that that parcel would be irrigated;16·

·right?17·

· · ·· A.· ·Yes.18·

· · ·· Q.· ·So your background ET line isn't a hard19·

·cutoff between irrigated and nonirrigated parcel;20·

·right?21·

· · ·· A.· ·No.··It's used just as a gauge of what one22·

·would anticipate seeing for ET given an average23·

·precipitation condition.24·

· · ·· Q.· ·Okay.··And in those instances where it's less25·



Page 3162

·certain that the particular parcel was irrigated, you·1·

·would suggest going out to make a field visit or look·2·

·at diversion records to see if that parcel was actually·3·

·irrigated; right?·4·

· · ·· A.· ·If that's the intent, is to determine whether·5·

·or not it's irrigated or not, a field visit would·6·

·definitely help confirm.·7·

· · ·· Q.· ·Okay.··You didn't do any field visits in·8·

·'04 and '06, though; right?·9·

· · ·· A.· ·Not in '04 and '06.10·

· · ·· Q.· ·And you weren't provided any diversion11·

·records for 2004 or 2006?12·

· · ·· A.· ·No, I was not.13·

· · ·· Q.· ·If it was uncertain whether or not a14·

·particular parcel was irrigated, so a parcel closer to15·

·your background ET line, would it also -- would you16·

·also suggest examining the background ET immediately17·

·surrounding that parcel to find out whether or not it18·

·was irrigated?19·

· · ·· A.· ·That extra information would be useful.··Due20·

·to the nature of some of the irrigated areas along the21·

·Tongue, there's -- especially those fields that are22·

·lying close to the river and below ditches, of course,23·

·there's a fair amount -- there are some areas where it24·

·appears there was a fair amount of subirrigation from a25·



Page 3163

·shallow water table that's fed from seepage from the·1·

·canals or seepage from adjacent irrigated fields.··So·2·

·some of those areas that were not included in the·3·

·parcels as potentially irrigated, did show a higher ET·4·

·than just the rain fed background.·5·

· · · · · · So to answer your question on looking at·6·

·adjacent fields, one could do that.··But I guess it·7·

·depends on how one defines irrigate.··If one is wanting·8·

·to assign ET to whether or not it's evaporating water·9·

·that was at some point in time introduced by a human10·

·down a ditch or through a pump system and then later11·

·found its way into a shallow groundwater system and12·

·then was re -- well, then was evapotranspired by either13·

·irrigated or nonirrigated, it depends on how you define14·

·whether or not that should be classified as consumptive15·

·use of irrigation water.16·

· · ·· Q.· ·Sure.··And I guess my point was more towards17·

·if an irrigated field was surrounded by ground I knew18·

·not to be irrigated, but that background ET was more19·

·than your average, would it be more effective or more20·

·proper, for that particular location, to look at the21·

·background ET in that location?22·

· · ·· A.· ·Well, again, I can't say yes.··Because if23·

·that surrounding background ET has a component of water24·

·that stems from the irrigation system, using that to25·



Page 3164

·represent a background ET would tend to understate the·1·

·consumption of diverted water.··Because the source of·2·

·that higher ET that's above the precipitation·3·

·originates from irrigation diversions.·4·

· · ·· Q.· ·So you would have to do some additional·5·

·investigation to figure out what the source of that·6·

·water is?·7·

· · ·· A.· ·That would be helpful to trace it back, sure.·8·

· · ·· Q.· ·Now, you yourself have not made a·9·

·determination in this case about whether any of the10·

·particular 2600 parcels were irrigated or not?11·

· · ·· A.· ·No, I did not.12·

· · ·· Q.· ·And to your knowledge, it was Mr. Book who13·

·made the determination about whether any of the parcels14·

·were actually irrigated or not?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·And I think you told me that Mr. Book is the17·

·one that created the polygons for the 2600 parcels and18·

·then provided them to you; right?··Or I'm not sure if I19·

·should say he created them.··But he provided the 260020·

·parcels to you; right?21·

· · ·· A.· ·Yes.··Or one of his IT technicians.22·

· · ·· Q.· ·And then you provided Montana with monthly23·

·and the seasonal ET estimates for the parcels24·

·identified by Mr. Book; right?25·



Page 3165

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·And those estimates indicated when ET took·2·

·place, not irrigation; right?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·ET that results from irrigation can sometimes·5·

·be reflected for weeks after the irrigation water is·6·

·applied; right?·7·

· · ·· A.· ·Yes.·8·

· · ·· Q.· ·And you can't determine the date the·9·

·irrigation water was applied just by using METRIC;10·

·right?11·

· · ·· A.· ·No.12·

· · ·· Q.· ·And you don't have an opinion in this case13·

·about when any particular parcel of land identified by14·

·Mr. Book actually received irrigation water; right?15·

· · ·· A.· ·No.··All we can see is that there's an ET16·

·quantity that is not explained by precipitation.17·

· · ·· Q.· ·Okay.··And METRIC can't determine the source18·

·of the water that results in the ET; right?19·

· · ·· A.· ·No.20·

· · ·· Q.· ·So, and I just want to go through the21·

·possible sources.··It can't determine if the source of22·

·the water was irrigation with natural flow from a23·

·stream; right?24·

· · ·· A.· ·No.25·



Page 3166

· · ·· Q.· ·And METRIC can't determine if the source of·1·

·water was irrigation with groundwater?·2·

· · ·· A.· ·Not only by itself.··If one has some records·3·

·of placement of groundwater permits or the hardware for·4·

·using groundwater and one knows the field it was·5·

·assigned to, then METRIC could confirm the amount of·6·

·consumption of that groundwater.·7·

· · ·· Q.· ·But METRIC just says ET was taking place on·8·

·that field.··You have to do something else to figure·9·

·out the source of the water; right?10·

· · ·· A.· ·Yes.··That's right.11·

· · · · · · I would say back to your previous question on12·

·whether or not METRIC can determine if ET comes from a13·

·nonirrigation source, one might be able to make some14·

·estimates of that occurring if one knows the start of15·

·the irrigation season and sees evapotranspiration16·

·occurring above the background prior to that irrigation17·

·season.··Or if one sees evapotranspiration well beyond18·

·any documented closure of the irrigation season, one19·

·might attribute that to a nonirrigation source.20·

· · ·· Q.· ·Okay.21·

· · ·· A.· ·But I did not do that.22·

· · ·· Q.· ·And the other potential sources of water,23·

·METRIC can't determine the source if the source was24·

·storage water; right?25·


RICHARD ALLEN, PH.D. - November 13, 2013Examination by the Special Master

Page 3167

· · ·· A.· ·No.·1·

· · ·· Q.· ·And you don't have an opinion in this case·2·

·about the source of water that resulted in ET on any of·3·

·the parcels provided to you by Mr. Book; right?·4·

· · ·· A.· ·No.·5·

· · ·· Q.· ·I'm not sure if my question was good.··Were·6·

·you agreeing with me?·7·

· · ·· A.· ·Yes.·8·

· · ·· Q.· ·Okay.··That's all I have.·9·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.··So I don't10·

·have -- my questions are not particularly long.11·

· · · · · · · · · · · · EXAMINATION12·

·BY SPECIAL MASTER:13·

· · ·· Q.· ·But let me ask a few of them.··So I'd like to14·

·start out just talking about one of the areas that15·

·Mr. Brown just talked to you about, which is, as I16·

·think you testified, the higher the ET level on any of17·

·the parcels that are shown on Tables 3 or 4, the more18·

·likely it is that that particular parcel was irrigated;19·

·correct?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·And similarly the lower, the more uncertainty22·

·there is?23·

· · ·· A.· ·Yes.··And one piece of information that24·

·assists with that is that these all represent parcels25·



Page 3168

·that had been determined by Mr. Book's company to be·1·

·potentially irrigated.··I say that because if we didn't·2·

·sample only these parcels, constrain our sampling to·3·

·those only, we would be sampling, say, growths of·4·

·cottonwood trees that would have, very possibly, ET as·5·

·high as 30, 35 inches or wetlands, even ponds.··So by·6·

·constraining the sampling to what were characterized as·7·

·potentially irrigated, the confidence increases that a·8·

·high ET is probably associated with irrigation.·9·

· · ·· Q.· ·So in the -- in your use of ET, is there any10·

·particular rule that you would normally use to11·

·determine whether it's more likely or not that a12·

·particular parcel has been irrigated?13·

· · ·· A.· ·Well, I would say it's a rule that was used14·

·in this case, that the further the departure of ET from15·

·the background ET that's explained by precipitation16·

·only, especially in the context of being inside of a --17·

·what looks like a tilled, irrigated, or irrigable18·

·field, gives good indication of the presence of19·

·irrigation.20·

· · ·· Q.· ·Okay.··And, of course, in the legal field,21·

·unlike in others, we're frequently interested in22·

·whether something is more likely than not.··Are you23·

·saying that it's more likely than not, unless you know24·

·something else, that if one of these parcels is above25·



Page 3169

·the nonirrigation line that you have, that it was·1·

·irrigated?·2·

· · ·· A.· ·Are you asking for how far above before I·3·

·would --·4·

· · ·· Q.· ·Yeah.·5·

· · ·· A.· ·-- say yes or no?·6·

· · · · · · If I were characterizing a large number of·7·

·fields, like in this case, and what was important was·8·

·to get an average of the acres of the irrigation, my·9·

·answer would be yes.··You know, I would say if we are,10·

·say, 20, 30 percent above that background line, on11·

·average, I'm going to catch most of the irrigated12·

·fields.13·

· · · · · · But I will make some errors for the reason14·

·that the background ET can vary from point to point15·

·depending upon the local hydrology and terrain.··For16·

·example, you might have an area that functions at kind17·

·of a sump.··So if there's a rain off event, it might18·

·catch some extra water, infiltrate it.··Therefore, it's19·

·got a supply that's greater than the average20·

·precipitation for the area.··So that particular parcel21·

·could have ET that's 3 or 4 inches above the background22·

·and could -- depending on how tight one's tolerance23·

·was, one could mischaracterize that as irrigated.24·

· · ·· Q.· ·So when you get to a parcel-by-parcel25·



Page 3170

·analysis, that's where there is greater uncertainty for·1·

·each individual parcel?·2·

· · ·· A.· ·Yes.··But coupled with just a bare satellite·3·

·image that shows vegetation, say, of a true color or·4·

·what we call a false color, where green vegetation is·5·

·colored red -- you may have seen those before.·6·

· · ·· Q.· ·Yes.·7·

· · ·· A.· ·If one had this sampled ET data on one screen·8·

·and then also had a screen where one could look at the·9·

·field and note its color, the texture of the10·

·vegetation, the amount of vegetation, it can become --11·

·especially with an aerial photo where you can see12·

·almost detail of tillage marks and cultivation marks,13·

·it can become relatively obvious that there's some14·

·activity there.15·

· · · · · · And oftentimes in an arid climate like16·

·Wyoming and Montana, Idaho -- well, if there's a field17·

·that has fairly uniform vegetation and one can see18·

·evidence of tillage and such, it's a better indication19·

·that that field probably is irrigated also.··Otherwise,20·

·you know, with the background ET of 10 inches it's21·

·difficult to grow any crop for profit with very intense22·

·investment of tillage and agronomic input.··So if one23·

·sees evidence of those inputs, there's probably a24·

·strong indication that there's also an irrigation25·



Page 3171

·component sometime during the irrigation season.·1·

· · ·· Q.· ·Okay.··So another thing that I believe you·2·

·said was that there were some parcels that you looked·3·

·at with subirrigation that had slightly higher levels·4·

·of ET.··And I'm just curious, when you said "slightly·5·

·higher," what numerical range you're talking about.·6·

· · ·· A.· ·Well, there are a couple of those 23 up west·7·

·of Ranchester near Dayton that were, you know, almost·8·

·twice the background.··For example, in 2006 there was·9·

·one -- or two that had 22 and 23 inches of ET.··So10·

·that's 7 or 8 inches above the background.11·

· · · · · · And in viewing those in the database -- I12·

·wish I had a database here to pull up.··Those two13·

·parcels are down in the alluvial area where the14·

·irrigation occurs.··But for whatever reason, they were15·

·not marked as irrigated.··And that might be because16·

·they are marshy areas that just are too difficult to17·

·farm.··They might be a local wetland or, you know,18·

·ecological preserve or something.19·

· · ·· Q.· ·Okay.··And I'm also curious, Mr. Brown asked20·

·you the question whether you can determine the date21·

·when a field is irrigated based on the ET results, and22·

·you said no.··So I also wanted to go back and talk23·

·about some of the data that we have here.24·

· · · · · · So if you have a seasonal total of ET, then25·



Page 3172

·that will tell you if it's, say -- you know, if it·1·

·looks significantly higher than the background, then·2·

·that's an indication that it was irrigated at some·3·

·point during the season?·4·

· · ·· A.· ·Yes.·5·

· · ·· Q.· ·Is that correct?·6·

· · ·· A.· ·Yes.·7·

· · ·· Q.· ·Is there any -- is it correct that the higher·8·

·the seasonal ET, the longer it's likely to have been·9·

·irrigated over the season?10·

· · ·· A.· ·Yes, most likely.··That would indicate that11·

·the vegetation is present for a longer period, which12·

·presupposes that there probably was a longer season of13·

·irrigation to supply that ET.14·

· · · · · · I did also sample each of these parcels on a15·

·monthly basis.··So the monthly ET is present also.··So16·

·if one were interested in an individual parcel, one17·

·could plot monthly ET and see when it might taper off.18·

· · · · · · And, again, if one also has the vegetation19·

·index image alongside that, you can also see usually a20·

·corresponding reduction in the amount of vegetation21·

·visible.22·

· · ·· Q.· ·So that was going to be my next question.··In23·

·the case of monthly ET data, so if you see an elevated24·

·level -- well, let me actually ask the question in a25·



Page 3173

·different way.·1·

· · · · · · If a field is irrigated, say, in April, how·2·

·long are you likely to see impacts on the ET level as a·3·

·result of that irrigation in April?·4·

· · ·· A.· ·Well, one can see impacts probably for·5·

·several months --·6·

· · ·· Q.· ·Okay.·7·

· · ·· A.· ·-- afterwards.··But it's going to be·8·

·diminishing.··Some of the figures we saw this morning·9·

·from Dr. Schreüder, I mean, they were a completely10·

·different topic, but kind of showed the exponential11·

·decline associated with CBM pumping.12·

· · · · · · You can see a similar effect on ET.··If you13·

·plant a crop and then, let's say, you give it two or14·

·three doses of irrigation, get it established, fill up15·

·the root zone and then quit irrigating, that crop is16·

·going to be very happy for one or two weeks, depending17·

·upon its rooting depth and water-holding capacity of18·

·the soil.··But it's going to start to experience some19·

·shortage of moisture.··But as a consequence, it's going20·

·to start restricting its stomate as a survival21·

·technique because it's what we call under stress.··But22·

·that's a gradual closure because that plant is still23·

·wanting to photosynthesize, so it needs to keep storing24·

·something for its CO2 to enter, and that's when the25·



Page 3174

·water vapor goes out.·1·

· · · · · · So what we see is kind of a gradual decline·2·

·in ET relative to that ET value.··And that can extend·3·

·for two, three, four, five weeks until that plant·4·

·finally has mined all the available water out of the·5·

·soil.··It can't keep its leaves hydrated any longer.·6·

·And it's going to desiccate and finally die.··But that·7·

·could be several months after a termination of·8·

·irrigation.·9·

· · ·· Q.· ·Okay.··So what you would expect to see on a10·

·month-to-month basis with a field irrigated in April11·

·and then not irrigated after that, it would be that you12·

·would still see an ET impact, but that that impact13·

·would be declining over time?14·

· · ·· A.· ·Yes.··And depending on the soil, on a sandy15·

·soil, it might be a few weeks before, say, alfalfa16·

·decides to go dormant.··Whereas, if it's a nice deep17·

·silt loam soil, it might go six weeks, eight weeks18·

·before it finally goes dormant.··But those last three19·

·or four weeks, it's just really obvious looking at a20·

·satellite photo that that crop is stressed and the ET21·

·is less than the potential would be.22·

· · ·· Q.· ·Okay.23·

· · · · · · SPECIAL MASTER:··So I think that's all of my24·

·questions.··Why don't we take the afternoon -- second25·


RICHARD ALLEN, PH.D. - November 13, 2013Redirect Examination by Mr. Draper

Page 3175

·afternoon break, though, for ten minutes.··And I think·1·

·we'll have you out of here probably by 4:00.··So you'll·2·

·be able to make your plane.·3·

· · · · · · THE WITNESS:··Thank you, Your Honor.·4·

· · · · · · · · · · · (Recess taken 3:30 to 3:40·5·

· · · · · · · · · · · p.m., November 13, 2013)·6·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be·7·

·seated.·8·

· · · · · · So first of all, Mr. Brown?·9·

· · · · · · MR. BROWN:··I have no questions.10·

· · · · · · SPECIAL MASTER:··Okay.··Mr. Draper?11·

· · · · · · MR. DRAPER:··Just had one follow-up question12·

·to your discussion with Dr. Allen.13·

· · · · · · SPECIAL MASTER:··That would be fine.14·

· · · · · · · · · · REDIRECT EXAMINATION15·


· · ·· Q.· ·Dr. Allen, you discussed with the Special17·

·Master a couple of parcels near Dayton that had higher18·

·ET values.··I understand that they may be subirrigated.19·

·Were those parcels among the parcels that you used to20·

·determine the background ET?21·

· · ·· A.· ·Yes, they were.··I made a note that there22·

·were four parcels that were well above that background23·

·average, and their values.··For example, 2006, which I24·

·think is a year of more interest, the values were25·


RICHARD ALLEN, PH.D. - November 13, 2013Redirect Examination by Mr. Draper

Page 3176

·23 inches, 22 inches, 14 and a half inches, and·1·

·16.2 inches.··So those were all 3 to 10 inches higher·2·

·than that background.·3·

· · · · · · And the ET of those four parcels was included·4·

·in that average based on the 23.··So that background·5·

·value is a little bit conservative in the upward·6·

·direction as far as representing, you know, what we·7·

·would suggest as a background ET and expected for rain·8·

·fed conditions.·9·


· · · · · · SPECIAL MASTER:··Thank you, Mr. Draper.11·

· · · · · · So, Dr. Allen, you're now free.12·

· · · · · · THE WITNESS:··Thank you, Your Honor.13·

· · · · · · SPECIAL MASTER:··You're welcome.14·

· · · · · · MR. DRAPER:··Your Honor, with your15·

·permission, we will call our next witness.16·

· · · · · · SPECIAL MASTER:··That would be great.17·

· · · · · · MR. DRAPER:··That will be Mr. Art Compton.18·

·The examination will be performed by Mr. Swanson.19·


· · · · · · (Art Compton sworn.)21·

· · · · · · THE CLERK:··Have a seat, please.··When you're22·

·seated, state your name and spell it.23·

· · · · · · THE WITNESS:··My name is Art Compton,24·

·C-o-m-p-t-o-n.25·


ART COMPTON - November 13, 2013Direct Examination by Mr. Swanson

Page 3177

· · · · · · MR. SWANSON:··Your Honor.·1·

· · · · · · SPECIAL MASTER:··Good afternoon, Mr. Swanson.·2·

· · · · · · MR. SWANSON:··Your Honor, Mr. Compton is to·3·

·testify as a former official of Montana Department of·4·

·Environmental Quality.··His background and experience·5·

·is in the areas of water quality, but his testimony is·6·

·relevant to water quantity and specifically some·7·

·aspects of CBM wells, reservoirs, and regulation in·8·

·Montana and a little bit in Wyoming.·9·


· · · · · · · · · · · · ART COMPTON,11·


· · · · · · · · · ·· DIRECT EXAMINATION13·

·BY MR. SWANSON:14·

· · ·· Q.· ·Good afternoon, Mr. Compton.15·

· · ·· A.· ·Good afternoon.16·

· · ·· Q.· ·Can you tell us, what's your current17·

·occupation?18·

· · ·· A.· ·I am retired.19·

· · ·· Q.· ·And you're retired from where?20·

· · ·· A.· ·From the Montana Department of Environmental21·

·Quality.22·

· · ·· Q.· ·And can you tell us how long you worked at --23·

·we'll call it DEQ for short -- how long you worked at24·

·DEQ and what your responsibilities were there?25·



Page 3178

· · ·· A.· ·Sure.··I was with the DEQ approximately 30·1·

·years.··During that 30 years, I spent 10 years in the·2·

·middle as bureau chief of the Environmental Management·3·

·Bureau.··Ten years after that, I was division·4·

·administrator of the DEQ's Planning Division.··And in·5·

·that capacity, I oversaw the process by which Montana·6·

·develops and promulgates state Water Quality Standards.·7·

· · ·· Q.· ·And then you retired in what year?·8·

· · ·· A.· ·Did I retire when?·9·

· · ·· Q.· ·What year did you retire?10·

· · ·· A.· ·In 2009.··Following that, I returned to the11·

·Department as a Senior Environmental Specialist.··And I12·

·did that for the purpose of rewriting the technical13·

·basis for our Water Quality Standards for14·

·electroconductivity and sodium absorption ratio for the15·

·waters of CBM pumping in the Tongue and the Powder.16·

· · ·· Q.· ·When did you finish that project?17·

· · ·· A.· ·I'm sorry?18·

· · ·· Q.· ·When did you finish that project?19·

· · ·· A.· ·That would have been -- those -- that20·

·technical basis was completed and published in 2011.21·

· · ·· Q.· ·Can you tell us, what is your postsecondary22·

·education?23·

· · ·· A.· ·Sure.··I have an MS degree -- excuse me -- a24·

·bachelor of science degree from the United States Air25·



Page 3179

·Force Academy in engineering management.··I have a·1·

·master of science degree in regional and environmental·2·

·planning from the University of Montana.·3·

· · ·· Q.· ·So you served in the Air Force for a while.·4·

·Could you just briefly cover that career?·5·

· · ·· A.· ·I was on active duty for six years.··When my·6·

·hitch was up I returned to graduate school and joined·7·

·the Montana Air National Guard.··And I worked for the·8·

·Montana Air National Guard for the following 24 years.·9·

· · ·· Q.· ·Meaning, as a part-time guardsman?10·

· · ·· A.· ·Correct.11·

· · ·· Q.· ·What did do you in the Air Force?12·

· · ·· A.· ·I was a pilot.13·

· · ·· Q.· ·What did you fly?14·

· · ·· A.· ·I flew the F106 and then F16.15·

· · ·· Q.· ·And did you have any environmental duties in16·

·the Air Force as well?17·

· · ·· A.· ·I did.··Probably the reason I was in so long.18·

·I was -- oversaw the efforts of the contractor writing19·

·an EIS for the development of our air-to-ground gunnery20·

·range in Montana.··It was a natural fit because I had21·

·environmental responsibilities at my regular job during22·

·the week.23·

· · ·· Q.· ·Can you explain DEQ's role in how -- in24·

·Montana's adoption of water quality rules?25·



Page 3180

· · ·· A.· ·Sure.··When there's a need to promulgate·1·

·standards to address a potential impact to beneficial·2·

·uses of water, the DEQ technical staff does the·3·

·research, assembles the technical background or·4·

·statement of basis for the rules.·5·

· · · · · · Those rules are then taken to the·6·

·department's decision-making body.··It's called the·7·

·Board of Environmental Review.··The board is an·8·

·eight-member body appointed by -- for four-year terms·9·

·by the governor.··They represent various disciplines.10·

·And, again, they are the decision-making body for the11·

·department.12·

· · · · · · They review the technical work that the staff13·

·has done; in this case, on rules promulgation.··They14·

·build a record of evidence through the contested case15·

·hearing process.··And at the end of that, they issue a16·

·record of decision based on that record of evidence.17·

· · ·· Q.· ·So is it fair to say that you've -- in that18·

·process, you've been both personally involved as well19·

·as supervised others who were involved in providing20·

·that technical support to those rules?21·

· · ·· A.· ·I have.22·

· · ·· Q.· ·Do you know anything about how Montana23·

·regulates coalbed methane wells and water?24·

· · ·· A.· ·Yes, I do.··And the water media is separated25·



Page 3181

·in Helena.··The Department of Natural Resources, the --·1·

·actually, the Montana Board of Oil and Gas·2·

·Conservation, their staff arm is the Oil and Gas·3·

·Conservation Division of the Department of Natural·4·

·Resources and Conservation.··They issue a well permit·5·

·for the well based on the well application.·6·

· · · · · · If the water is proposed for beneficial use,·7·

·that is also the Department of Natural Resources and·8·

·Conservation.··They will issue a water use permit.··The·9·

·DNRC also administers the law that protects water10·

·sources, domestic and agriculture water sources, such11·

·as wells and springs, from potential effects of aquifer12·

·drawdown.··And that's done through the DNRC's13·

·conservation districts division.14·

· · · · · · And, finally, the DEQ's area of involvement,15·

·if the well will require a water discharge permit,16·

·discharge waters of the state, then they apply to the17·

·DEQ for the discharge pump.18·

· · ·· Q.· ·That's been your role in DEQ is working on19·

·the water discharge permits from CBM wells?20·

· · ·· A.· ·Actually, the water media at DEQ is somewhat21·

·divided as well.··The Permitting and Compliance22·

·Division actually issues the permit.··The Planning23·

·Division, that I was with, writes the technical basis24·

·for the Water Quality Standards that drives the permit25·



Page 3182

·math for the permits issued by the Compliance Division.·1·

· · ·· Q.· ·So looking at those standards, how does·2·

·Montana treat CBM water discharge in terms of requiring·3·

·certain standards for the operator to discharge that·4·

·water?·5·

· · ·· A.· ·Sure.··Of course, any discharge has to meet·6·

·the Water Quality Standard if there is one.··For CBM·7·

·produced water in Montana, that is considered a·8·

·pollutant under the federal Clean Water Act.··And,·9·

·therefore, it requires treatment.··So all CBM produced10·

·water is treated before it's discharged.11·

· · · · · · As a result of that, the CBM industry in12·

·Montana doesn't generally make use of reservoirs or13·

·ponding.··Because the water is treated and, therefore,14·

·it is guaranteed to protect beneficial uses, it's15·

·generally discharged to perennial streamflow.16·

· · ·· Q.· ·Do you know, does it match the level of water17·

·nutrients in the streams that it's discharged into?··Or18·

·what level does it need to be treated to before it's19·

·discharged to a water body?20·

· · ·· A.· ·Well, the water would have to be treated to21·

·meet the published or the adopted Water Quality22·

·Standards for that water body, generally at the end of23·

·a mixing zone.··Although, sometimes -- especially with24·

·the type of water treatment plants that have been used25·



Page 3183

·for CBM produced water, sometimes the industry has·1·

·found it beneficial to treat to that water standard at·2·

·the end of the pipe rather than the end of the mixing·3·

·zone.··But the objective is the same:··to meet Water·4·

·Quality Standards.·5·

· · ·· Q.· ·So you mentioned that discharge seems to be·6·

·the dominant method of dealing with CBM water.··Are·7·

·there any large, or are there many CBM reservoirs··in·8·

·Montana?·9·

· · ·· A.· ·There are not.··Our main producer, Fidelity10·

·Exploration & Production, had a couple of ponds on11·

·their CX Ranch development in the early 2000s, but they12·

·did not receive much use.··From really those early13·

·days, Fidelity applied for and received a discharge14·

·permit to the Tongue.15·

· · ·· Q.· ·Do you have any -- or did you, in your time16·

·at DEQ, have any experience or interaction with Wyoming17·

·DEQ officials and how they dealt with CBM?18·

· · ·· A.· ·We do.··We did, and regularly.··Being a19·

·downstream state and with the potential for -- and the20·

·level of production of the CBM resource in Wyoming,21·

·recognizing that Montana may have 10 to 20 percent of22·

·the CBM resource and Wyoming probably 80 to 90 percent23·

·of it, we had a regular dialogue with the Wyoming DEQ24·

·on Wyoming water management strategies.··That dialogue25·



Page 3184

·was always cordial and constructive.··It was not only a·1·

·weekly or monthly dialogue on current issues, but, of·2·

·course, we also worked with Wyoming on various·3·

·technical working groups in national symposiums, that·4·

·type of thing.·5·

· · ·· Q.· ·You mentioned a minute ago that, you said·6·

·Montana had 10 to 20 percent of this resource for CBM·7·

·and Wyoming 80 to 90 percent.··Do you mean within the·8·

·Powder River Basin, or do you mean total between the·9·

·two states?··Just maybe give us a framework for that10·

·percentage.11·

· · ·· A.· ·You know, really our Water Quality Standards12·

·and, therefore, my technical focus is really only on13·

·the Powder River drainage and the Tongue River14·

·drainage, which have been collectively been called the15·

·Powder River Basin.··That's really the only area where16·

·we promulgated standards.··They were river-specific17·

·standards to the Powder, the Tongue, and the18·

·tributaries thereto.··And so that is the universe of19·

·CBM production in Montana.20·

· · ·· Q.· ·Okay.··And then in terms of your discussions21·

·with Wyoming, do you recall what year you began22·

·actively communicating with Wyoming DEQ?··And how long23·

·did that continue?24·

· · ·· A.· ·Our technical dialogue with the Wyoming DEQ25·



Page 3185

·goes back to the very early days of CBM development.·1·

·In fact, I think we put in place a memorandum of·2·

·agreement back in 2001, if I remember correctly, on a·3·

·strategy the two states would use to protect water·4·

·quality at the borders.·5·

· · ·· Q.· ·And these discussions were -- you mentioned a·6·

·lot of discussions and communications.··Were these oral·7·

·communications, or was there ever an opportunity to·8·

·formally comment on anything going on in Wyoming?·9·

· · ·· A.· ·Generally, they were oral conversations.10·

·There were probably half a dozen plus times when we11·

·were perhaps not entirely comfortable with our level of12·

·understanding or of upstream water strategies or when13·

·we had differences of opinion on -- on whether water14·

·management strategies might affect Montana, that we put15·

·those concerns in writing.16·

· · · · · · Wyoming responded in writing.··And, again,17·

·that may have happened half a dozen or so times over18·

·that -- from the early days of CBM development in the19·

·early 2000s up through, say, 2010, 2011.20·

· · ·· Q.· ·So in terms of what those comments were, can21·

·you just tell us the substance of what those concerns22·

·were that you were asking of Wyoming?··Were they all23·

·the same?··Was it a general pattern that was24·

·consistent?25·



Page 3186

· · ·· A.· ·Sure, there was.··And, of course, with the·1·

·level of development in Wyoming, with them, you know,·2·

·hosting 80 to 90 percent of the Powder River Basin CBM·3·

·resource, our common thread in our dialogue was, I·4·

·guess I'd characterize it as how is this particular·5·

·water management strategy, whether it was off-channel,·6·

·total containment, water ponds in Wyoming, or the more·7·

·common on-channel method of disposing of produced·8·

·water, whether that would protect water quality at the·9·

·border.10·

· · ·· Q.· ·Meaning, you were worried about whether CBM11·

·water was coming into Montana?12·

· · ·· A.· ·Sure.13·

· · ·· Q.· ·And when you asked that question, what was14·

·the -- generally, what were the responses you received15·

·from Wyoming?16·

· · ·· A.· ·Generally, it was pretty consistent.··Looking17·

·at what Wyoming termed total containment off-channel18·

·ponds, those facilities are designed not to contribute19·

·water to -- not to reach areas of perennial streamflow20·

·that might flow into Montana and be -- and affect water21·

·quality at the state line on the Tongue or Moorhead on22·

·the Powder.23·

· · · · · · With respect, again, to the more common water24·

·management strategy, which was on-channel ponds,25·



Page 3187

·Wyoming's position was consistently that the only water·1·

·that was going to reach Montana was the result of·2·

·overtopping of ponds during precipitation events.··And·3·

·that's the way their permits were issued.·4·

· · · · · · And that was considered a -- to use Wyoming's·5·

·terminology, a short-term temporary sending of water,·6·

·produced water, downstream and, therefore, not·7·

·considered significant.··And when we would ask the·8·

·question, that would be their response.·9·

· · ·· Q.· ·So let's just talk about the on-channel for10·

·moment.··So the on-channel reservoirs, they indicated11·

·that the -- that there would be water that would -- I12·

·guess, CBM stored water that would come from those13·

·reservoirs, but it would be how often or how frequent?14·

·Can you give us an understanding of that?15·

· · ·· A.· ·How frequent the discharge was?16·

· · ·· Q.· ·Yes.··And I guess if you have any idea of the17·

·magnitude of what they communicated to you.18·

· · ·· A.· ·Sure.··I would say that, as in most common19·

·water management strategies, speaking of on-channel20·

·ponds, that the Wyoming proposed monthly pollutant21·

·discharge, Wyoming pollutant discharge elimination22·

·system permits, draft permits that were proposed, of23·

·course, were posted.··And very often that list of24·

·proposed permits would form the basis for our dialogue25·



Page 3188

·that month.·1·

· · · · · · In any given permit group, there could be a·2·

·30 or 40 proposed permits, each of which could have·3·

·anywhere from 2 or 3 to 12 ponds.··And so that would be·4·

·in one month.··A proposed permit, whether it was an·5·

·original permit in the early 2000s or a renewal, which·6·

·was most of the permits in the later 2000s were·7·

·renewal, renewed permits.·8·

· · · · · · That gives you some idea of the magnitude of,·9·

·you know, of the on-channel pond use in Wyoming.10·

· · ·· Q.· ·And so these reservoirs or these ponds may be11·

·a mix of on-channel or off-channel, depending on the12·

·situation?13·

· · ·· A.· ·Based on the permit; right.··Some used total14·

·containment off-channel pits.15·

· · ·· Q.· ·And some used -- I didn't hear the rest.16·

·Could you repeat rest of your answer?17·

· · · · · · I'll just ask you, so some would have18·

·off-channel permits and some would have on-channel19·

·permits; is that --20·

· · ·· A.· ·Correct.··And some a combination of the two.21·

· · ·· Q.· ·Can you just explain a little more?··I'm22·

·still not clear on when you say that a precipitation or23·

·an overtopping event, you said, may be the discharge24·

·for an on-channel permit.··Was that a typical rainstorm25·



Page 3189

·or what did that represent to you?·1·

· · ·· A.· ·Well, in the -- I'd say in the first half of·2·

·the 2000s, that language in Wyoming permits allowing·3·

·them to overtop and discharge during a precip event, we·4·

·asked -- that's an example of one of the issues, I·5·

·guess, that we couldn't quite get satisfaction from our·6·

·counterparts at Wyoming DEQ on.··So we did put those·7·

·issues in writing, asked them to specify the size of·8·

·the precip event that could cause an overtopping, how·9·

·long the overtopping could occur, so that we had a10·

·little bit more comfort level with the amount of water11·

·that would be -- that would constitute what was12·

·characterized as a temporary or short-term discharge.13·

· · ·· Q.· ·And then would the Wyoming officials14·

·represent to you whether that water would go all the15·

·way into the streams in Montana?16·

· · ·· A.· ·They -- in response to those concerns, they17·

·did begin specifying the size of the precip event,18·

·like, a 5-year, 10-year, 25-year event.··They also19·

·generally started putting in the provision that the20·

·overtopping could not occur for more than 48 hours.21·

· · · · · · But, again, that temporary short-term22·

·overtopping was the only discharge that was anticipated23·

·to reach Montana from Wyoming.24·

· · ·· Q.· ·Let's talk about the other type you25·



Page 3190

·mentioned.··You mentioned off-channel, total·1·

·containment ponds.··Does that term "total containment,"·2·

·was that a term used by the Wyoming officials?·3·

· · ·· A.· ·You bet.··In fact, the term total containment·4·

·was in a lot of the earlier permits that used·5·

·off-channel ponds.·6·

· · ·· Q.· ·And I think you testified earlier that that·7·

·basically meant no water was coming out of those ponds·8·

·into the surface flows.··Is that accurate, or is it·9·

·more than that?10·

· · ·· A.· ·Yeah, I think the -- our understanding of the11·

·term total containment was, you know, intuitive, I12·

·suppose.13·

· · ·· Q.· ·So did they represent whether that water was14·

·not only not going into the surface flows but also not15·

·going into the groundwater; do you recall?16·

· · ·· A.· ·That's right.··And independent of our17·

·dialogue with Wyoming, over the course of -- oh, I18·

·think their first guidance on construction of unlined,19·

·construction and monitoring of the water in off-channel20·

·pits was about 2002.··An evolution of that regulatory21·

·guidance came out in 2004.··The final one came out in22·

·November of 2008.23·

· · · · · · And in that guidance, Wyoming stated that it24·

·had been brought to their attention that some of this25·



Page 3191

·water was escaping and possibly either daylighting·1·

·around downstream from the impoundment or affecting the·2·

·groundwater table below the impoundment.··And the·3·

·objection -- the objective of that regulatory evolution·4·

·that Wyoming went through was to prevent that from·5·

·happening.·6·

· · ·· Q.· ·What do you mean when you say "daylighting"?·7·

· · ·· A.· ·Water coming to the surface in or below the·8·

·reservoir, the off-channel reservoir.·9·

· · ·· Q.· ·Did Wyoming officials say whether that water10·

·was making it all the way to a perennial stream or all11·

·the way to Montana?12·

· · ·· A.· ·I think that's what Wyoming was trying to13·

·avoid.··And, again, the evolution of their regulatory14·

·approach to larger constructed off-channel ponds, I15·

·think, represents their ratcheting down or tightening,16·

·if you will, of their original intent back in the17·

·2000s, that water not escape from those facilities.18·

· · ·· Q.· ·Did the Wyoming officials give you any19·

·representations about the alluvial soil systems,20·

·whether they would impede or allow the water to travel21·

·to Montana?22·

· · ·· A.· ·I'm just not sure.··I just don't know.23·

· · ·· Q.· ·Did they discuss any possible ground barriers24·

·that would prevent the water from traveling to streams25·



Page 3192

·or to Montana?·1·

· · ·· A.· ·As far as techniques they used to prevent·2·

·that water from --·3·

· · ·· Q.· ·Like natural occurring barriers in the ground·4·

·that would prevent the water from traveling?·5·

· · ·· A.· ·Oh, sure.··Actually, that issue, I recall,·6·

·was more a function of the on-channel pond, the more·7·

·commonly used water management strategy in Wyoming.·8·

·When we asked -- you know, I think the questions early·9·

·on about, in addition to the overtopping, which was10·

·addressed specifically in their permits, the potential11·

·to overtop and the short-term temporary discharge that12·

·would constitute, whether there was any other sources13·

·of potential migration of that water downstream, and14·

·their response, you know, over the course of that 10,15·

·11 years was pretty consistent.··And that is they16·

·believed the alluvial soils in the bottom of ephemeral17·

·drainages where these ponds were sited, these18·

·on-channel ponds were sited, was discontinuous, that it19·

·was intercepted by confining layers, clay lenses,20·

·rock-out crops, and what have you, that prevented that21·

·water from coming all the way downstream to where it22·

·might intercept perennial flow.23·

· · ·· Q.· ·And then, I guess, one more question about24·

·these total containment systems.··There was some25·



Page 3193

·testimony earlier from a gentleman from Wyoming who·1·

·talked about bentonite liners of reservoirs.··Do you·2·

·have any familiarity with what that is?··Can you·3·

·describe that for us?·4·

· · ·· A.· ·Not really from a technical basis at all.·5·

·Again, following the evolution of Wyoming's regulatory·6·

·approach toward total containment off-channel ponds,·7·

·certainly there is probably unlined ones, natural soil.·8·

·There have been ponds with compressed clay or bentonite·9·

·liners.··There have been ponds that are membrane lined.10·

·And I couldn't tell you how often each one is used.11·

· · · · · · But I do know, from the work I've done with12·

·my colleagues at Wyoming DEQ, that that regulatory13·

·evolution they went through between 2002 and 2008, got14·

·at their -- was an attempt to be more effective on15·

·their original intent to keep that water in place.16·

· · ·· Q.· ·So has it always been their intent that those17·

·off-channel reservoirs would be total containment?18·

· · ·· A.· ·To my knowledge, yes.19·

· · · · · · MR. SWANSON:··Your Honor, I have no further20·

·questions.21·


· · · · · · Mr. Kaste.23·

·24·

·25·


ART COMPTON - November 13, 2013Cross-Examination by Mr. Kaste

Page 3194


·BY MR. KASTE:·2·

· · ·· Q.· ·Hi, Mr. Compton.··My name is James Kaste.·3·

· · ·· A.· ·Good afternoon, sir.·4·

· · ·· Q.· ·I'm with the Attorney General's office.··You·5·

·and I have never met before, and you've never given a·6·

·deposition in this case; correct?·7·

· · ·· A.· ·We have.·8·

· · ·· Q.· ·We have not met before?·9·

· · ·· A.· ·We have not.10·

· · ·· Q.· ·All right.··Let's talk about -- a little bit11·

·about CBM in Montana just a second because you brought12·

·that up.··Before we start, are you reading something up13·

·there?14·

· · ·· A.· ·I'm sorry?15·

· · ·· Q.· ·Were you reading something up there?16·

· · ·· A.· ·Reading?17·

· · ·· Q.· ·Reading.18·

· · ·· A.· ·I have an outline of my testimony.19·

· · ·· Q.· ·Oh, may I see that, please?20·

· · ·· A.· ·Certainly.21·

· · ·· Q.· ·Thank you.··I need just a moment.22·

· · ·· A.· ·Sure.23·

· · ·· Q.· ·If you use something to refresh your24·

·recollection on the stand, I get to look at it.25·



Page 3195

· · ·· A.· ·I think I'm good.··Thanks.·1·

· · ·· Q.· ·All right.··You did a good job.·2·

· · ·· A.· ·Thanks.·3·

· · ·· Q.· ·All right.··Like I said, let's talk about·4·

·Montana.··You have something in Montana called a zero·5·

·discharge pond; right?·6·

· · ·· A.· ·Did you say in Montana?·7·

· · ·· Q.· ·Yeah.·8·

· · ·· A.· ·We have a zero discharge?·9·

· · ·· Q.· ·Pond?10·

· · ·· A.· ·Pond?11·

· · ·· Q.· ·Oftentimes CBM impoundments in Montana can be12·

·described as zero discharge ponds.··And I got this off13·

·of your website or your former employer's website.14·

· · ·· A.· ·Okay.··So that I understand the question,15·

·you're asking, in Montana do we have a zero discharge16·

·pond?17·

· · ·· Q.· ·Yeah, generally, CBM impoundments can be18·

·referred to as a zero discharge pond.19·

· · ·· A.· ·I am not aware of really our -- of our one20·

·producer, which is Fidelity, E&P, using any ponds.21·

· · ·· Q.· ·All right.··And you understand that the22·

·purpose of a holding pond is to hold water that's been23·

·discharged from a CBM well; right?24·

· · ·· A.· ·Yes.25·



Page 3196

· · ·· Q.· ·And then either to let it evaporate or·1·

·infiltrate in the soil to get rid of it; correct?·2·

· · ·· A.· ·Correct.·3·

· · ·· Q.· ·All right.··So are you telling me in all·4·

·these CBM impoundment reservoirs in Wyoming, the state·5·

·of Wyoming was telling you, no water goes into the soil·6·

·from these impoundments?·7·

· · ·· A.· ·It's not that no -- that any water -- that no·8·

·water will leave the impoundment.··It's that none would·9·

·reach state line or Moorhead.10·

· · ·· Q.· ·Cool.··So the water in the impoundment11·

·infiltrates into the soil, some portion of it, in one12·

·of these impoundments; right?13·

· · ·· A.· ·I think that is probably intuitive.··And that14·

·was the reason we asked our counterparts at the Wyoming15·

·DEQ what the effect of any infiltration would be on16·

·water quality at state line.17·

· · ·· Q.· ·All right.··Now, have you had opportunities18·

·to deal with CBM operators?19·

· · ·· A.· ·Have I what?20·

· · ·· Q.· ·Had opportunities to deal with and interact21·

·with CBM operators?22·

· · ·· A.· ·To some extent.··I would say in regional and23·

·national gatherings.··Again, not being a permit person,24·

·I don't have a dialogue with the producers as a25·



Page 3197

·permittee because that's not what my job was.··Again,·1·

·one step removed, Water Quality Standards.·2·

· · ·· Q.· ·You understand that the intent with CBM·3·

·produced water is to find a way to get rid of it 'cause·4·

·that's not what the CBM producer is interested in;·5·

·right?·6·

· · ·· A.· ·In other words, an on-channel pond, for·7·

·instance, is a disposal facility as well as a storage·8·

·facility.·9·

· · ·· Q.· ·Sure.··But the CBM producer is interested in10·

·the gas.··And the by-product of the process is water11·

·which it has to find a way to dispose of; right?12·

· · · · · · You have to say yes out loud.13·

· · ·· A.· ·Well, again --14·

· · ·· Q.· ·You can't just nod.15·

· · · · · · SPECIAL MASTER:··You can give -- you don't16·

·have to give an answer of yes, but you do have to give17·

·an answer.18·

· · · · · · MR. KASTE:··I saw the nod, and I assumed that19·

·meant yes.··And I just thought you were nodding along20·

·with me.21·

·BY MR. KASTE:22·

· · ·· Q.· ·Please, go ahead.23·

· · ·· A.· ·Again, so I understand, the question is did I24·

·understand that there was going to be infiltration and25·



Page 3198

·water loss from these facilities?·1·

· · ·· Q.· ·Sure.·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·All right.·4·

· · ·· A.· ·And that's why we asked Wyoming the question,·5·

·do we need to be concerned about water quality impacts·6·

·to Montana from those facilities.·7·

· · ·· Q.· ·We can agree that water moves underground;·8·

·right?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·And that was a source of your concern; right?11·

· · ·· A.· ·But not far enough to affect water quality at12·

·state line, because that was our question to Wyoming.13·

· · ·· Q.· ·I understand.··Now, in Montana, early on14·

·particularly, you had a little bit different deal with15·

·CBM.··You allowed the producers to just discharge it16·

·directly into the stream; right?17·

· · ·· A.· ·We do.18·

· · ·· Q.· ·You do.··And so the permits, these discharge19·

·permits, are they a relatively new phenomena?20·

· · ·· A.· ·A relatively new phenomena in Montana?21·

· · ·· Q.· ·Yes, sir.22·

· · ·· A.· ·No.··I think the first ones we issued to23·

·Fidelity were 2002.24·

· · ·· Q.· ·Did that permit then authorize them to25·



Page 3199

·discharge the water produced from CBM production·1·

·directly into streams.·2·

· · ·· A.· ·They did.·3·

· · ·· Q.· ·And that has subsequently changed; is that·4·

·right or not?··Or did they still stick it right in the·5·

·stream?·6·

· · ·· A.· ·Did you say is it going to change?·7·

· · ·· Q.· ·Did it subsequently change, or can they still·8·

·discharge directly into the stream?·9·

· · ·· A.· ·I'm sorry.··I'm just not following the10·

·question.11·

· · ·· Q.· ·Can CBM producers today discharge their water12·

·into the stream in Montana?13·

· · ·· A.· ·They do; treated to state Water Quality14·

·Standards.15·

· · ·· Q.· ·When did the treatment process begin?16·

· · ·· A.· ·Did you say what is it?17·

· · ·· Q.· ·When did the treatment process begin?18·

· · ·· A.· ·I think -- I would say that the first19·

·treatment loops down our developments were mid-2000s.20·

· · ·· Q.· ·And before that, water was discharged21·

·untreated, directly into the streams?22·

· · ·· A.· ·They were -- that's correct.··And the way23·

·that works is the applicant will apply for a water24·

·discharge permit, a certain volume.··It is the permit25·



Page 3200

·shop at DEQ will do the numbers, crunch the math, and·1·

·decide whether that volume that is proposed for release·2·

·will meet state Water Quality Standards.··And if not,·3·

·then the permit is granted with a reduced discharge so·4·

·that it will meet standards.·5·

· · ·· Q.· ·So here's an interesting question, probably·6·

·has nothing to do with this litigation, but why would·7·

·Montana be concerned with what Wyoming is doing when·8·

·Montana is discharging untreated water into its·9·

·streams?10·

· · ·· A.· ·Because the volume.··Because we did the math.11·

·Montana DEQ did the math.··And the volumes that were12·

·allocated to Fidelity, E&P, in this case in 2002 were13·

·granted at a level that would not cause the receiving14·

·water to exceed state Water Quality Standards.15·

· · ·· Q.· ·And what you were thinking was there was16·

·going to be a whole bunch of water coming from Wyoming,17·

·and it's going to have an additive effect to what18·

·Fidelity is doing; right?19·

· · ·· A.· ·Talking about far greater -- potentially20·

·could be far greater volume.··And that's why we asked21·

·the questions.··And, again, we received assurances that22·

·that was not going to occur.23·

· · ·· Q.· ·It sounds to me like what you haven't done is24·

·done any kind of study to determine what amounts of CBM25·



Page 3201

·water came across the line from Wyoming into Montana.·1·

·Is that true or not?·2·

· · ·· A.· ·Would you repeat the question?·3·

· · ·· Q.· ·Have you yourself done a study to determine·4·

·the amount of water that came across from Wyoming into·5·

·Montana, CBM produced water?·6·

· · ·· A.· ·Are you asking if the effect of the discharge·7·

·in Montana is of the same magnitude as a potential·8·

·movement of water from Wyoming into Montana?·9·

· · ·· Q.· ·Nope.··I'm asking if you know, because you10·

·did the work, how much water came from Wyoming into11·

·Montana?12·

· · ·· A.· ·I do not.13·

· · ·· Q.· ·There you go.14·

· · ·· A.· ·But because that was a concern, we asked the15·

·question over the course of years of that technical16·

·dialogue with the Wyoming DEQ.··And we received17·

·assurances that the only discharges would be over the18·

·top -- overtopping reservoirs during precip events and19·

·that nature of that discharge would be short-term and20·

·temporary.21·

· · ·· Q.· ·And the discharge you're talking about there22·

·would be one directly from the holding pond right into23·

·the stream; right?24·

· · ·· A.· ·Into the ephemeral drainage below the pond.25·



Page 3202

· · ·· Q.· ·Fair enough.··So that it has just a direct·1·

·surface line to a stream that will reach Montana?·2·

· · ·· A.· ·That would depend on how far that holding·3·

·pond that those off-channel -- on-channel ponds are·4·

·above -- because overtopping occurs does not mean that·5·

·it will travel a sufficient distance down a dry·6·

·waterway to reach a perennial streamflow.·7·

· · ·· Q.· ·Sure.··And I understand that distinction.·8·

·But that's your area of concern, is that if it has that·9·

·path, there's the potential that it could very rapidly10·

·move its way into a stream that makes its way into11·

·Montana; right?12·

· · ·· A.· ·We asked the question because it seemed13·

·intuitive that that could occur.··And we were assured14·

·that, again, that discharge was temporary and15·

·short-term.16·

· · ·· Q.· ·All right.··Now, I think I understand this,17·

·and I think it's fairly clear in this case.··But a CBM18·

·well, your agency would issue a discharge permit for19·

·that well; correct?20·

· · ·· A.· ·If the well would -- if the applicant applied21·

·for a discharge to state waters from that produced22·

·water, yes.23·

· · ·· Q.· ·And I think you said that a different agency,24·

·the Department of Natural Resources and Conservation,25·



Page 3203

·would be the one in charge of -- if the well needed a·1·

·water right, that would be that agency's responsibility·2·

·to issue it; correct?·3·

· · ·· A.· ·Right.··The well permitted by DNRC, any water·4·

·right required, again, by DNRC, and the CBM mitigation·5·

·agreement.··All three from that agency.·6·

· · ·· Q.· ·Fair enough.··And is it your understanding·7·

·that only certain CBM wells that intend to put the·8·

·produced water to a beneficial use are required to·9·

·obtain a water right?··If you don't know, that's okay.10·

· · ·· A.· ·I don't.··I really don't.··I know that was an11·

·extensive dialogue in the state.··And I'm not sure I'm12·

·the guy to talk about it.13·

· · ·· Q.· ·And that's the best possible answer when you14·

·don't know.··Now, I think accordingly, given the fact15·

·that you are responsible and your agency is responsible16·

·for managing the discharges from these wells, I would17·

·assume that you don't have any responsibility for18·

·turning off these wells or managing these wells in some19·

·way in order to protect the quantity of water that20·

·might be obtained by some other water user?21·

· · ·· A.· ·When you say turn off the water, are you22·

·asking me if that's something we would direct, that the23·

·water -- that the level of produced water would be24·

·decreased?25·



Page 3204

· · ·· Q.· ·In essence, yes.··What I'm asking and what I·1·

·think is true is that your agency wouldn't be·2·

·responsible for regulating the pumping of water from·3·

·CBM wells if it was necessary to do so to protect other·4·

·water rights holders; that would be some other agency?·5·

· · ·· A.· ·Not water rights, no.··We wouldn't have·6·

·anything to do with that.·7·

· · ·· Q.· ·All right.··And I can't resist asking this·8·

·question:··You had some interactions with CBM·9·

·producers, and you had familiarity with the CBM process10·

·and impoundments in general, fair?11·

· · ·· A.· ·Yes.12·

· · ·· Q.· ·Thank you.··In your interactions with those13·

·folks, did you ever hear them tell you that the only14·

·good impoundment is one that you can't fill?15·

· · ·· A.· ·An impoundment that you cannot fill?16·

· · ·· Q.· ·Because it leaks so badly you can't fill it?17·

· · ·· A.· ·Not in my experience.18·

· · ·· Q.· ·All right.··Thank you very much.19·

· · ·· A.· ·Thank you.20·

· · · · · · SPECIAL MASTER:··And I just have one small21·

·little set of questions on something that Mr. Kaste22·

·didn't inquire with you about.23·

·24·

·25·


ART COMPTON - November 13, 2013Examination by the Special Master

Page 3205

· · · · · · · · · · · · EXAMINATION·1·

·BY SPECIAL MASTER:·2·

· · ·· Q.· ·You mentioned a 2002 regulatory guidance.·3·

·And what was the purpose of the 2002 regulatory·4·

·guidance as you understood it?·5·

· · ·· A.· ·Your Honor, I mentioned that year because·6·

·that was the first year that I recalled that Wyoming·7·

·had published guidance on construction of unlined ponds·8·

·and monitoring of unlined ponds.··So in my mind, I was·9·

·kind of thinking that was the beginning of Wyoming's10·

·approach to address water containment in those11·

·facilities.12·

· · ·· Q.· ·And so that's a published guideline?13·

· · ·· A.· ·It is, Your Honor.··But it has been replaced14·

·by the November 2008 Guidance.··And when you click on15·

·it, the title is still up on the Wyoming DEQ website16·

·for the 2002 and 2004 Guidance, I believe, but the17·

·documents are no longer there.··Because, again, it's18·

·been rescinded by the November 2008 Guidance, which is19·

·still available.20·

· · ·· Q.· ·Okay.21·

· · · · · · SPECIAL MASTER:··Okay.··That's my only22·

·question.23·

· · · · · · Mr. Kaste?24·

·25·


Recross-Examination by Mr. KasteART COMPTON - November 13, 2013

Page 3206

· · · · · · · · · · RECROSS-EXAMINATION·1·

·BY MR. KASTE:·2·

· · ·· Q.· ·I'm just going to follow up.··You talked·3·

·about the guidance that you found promulgated by DEQ in·4·

·Wyoming.··Our Department of Environmental Quality is·5·

·also called DEQ.··Where -- you were aware, I assume,·6·

·that there were direct discharges in Wyoming from CBM·7·

·production with permits from the Department of·8·

·Environmental Quality, just like in Montana; right?·9·

· · ·· A.· ·The discharges in Wyoming were authorized by10·

·the Wyoming DEQ.··Is that what you asked?11·

· · ·· Q.· ·Yeah, direct discharges.12·

· · ·· A.· ·Yes.13·

· · ·· Q.· ·And you knew that water was going to make its14·

·way to Montana; right?15·

· · ·· A.· ·The only water that it was portrayed to us16·

·that would reach Montana, again, was the water that was17·

·specifically authorized to discharge during precip18·

·events if that discharge was planned or if there was a19·

·planned reservoir release.··That drove permit math at20·

·the border, at least on a -- you know, under the Powder21·

·River simulative capacity.··The same exact assumptions22·

·were in place.··The only discharges that drove permit23·

·numbers at Moorhead on the Powder were those24·

·overtopping events.··There was no provision made for25·



Page 3207

·any water moving beneath the surface.·1·

· · ·· Q.· ·And I guess I'm asking a different question·2·

·than the water that would be moving beneath the·3·

·surface.··If there are direct discharges of CBM water·4·

·into the stream, surely you knew that would make its·5·

·way to Montana.·6·

· · ·· A.· ·That's correct.··That did not happen on the·7·

·Tongue.··It did happen on the Powder.··The permit math·8·

·that drove those permits on the Powder were our state·9·

·Water Quality Standards at the border.10·

· · · · · · So we had confidence that the discharges on11·

·the Powder, because they were under the simulative12·

·capacity program, would not exceed state Water Quality13·

·Standards at the border.14·

· · ·· Q.· ·So it's your understanding there were no15·

·direct discharges into the Tongue River drainage from16·

·CBM production?17·

· · ·· A.· ·I'm sorry?18·

· · · · · · MR. SWANSON:··Your Honor, asked and answered.19·

·I think this is the third time.··I don't know if it's20·

·going to be --21·

· · · · · · SPECIAL MASTER:··I'll permit it one more22·

·time.23·

·BY MR. KASTE:24·

· · ·· Q.· ·I just want to make sure, your understanding25·



Page 3208

·is there were no direct discharges from CBM production·1·

·into the Tongue River?·2·

· · ·· A.· ·On the Tongue?·3·

· · ·· Q.· ·Yes, sir.·4·

· · ·· A.· ·Wyoming's stated policy to us on the Tongue·5·

·was that they did not authorize discharges on the·6·

·Tongue that would reach state line that would affect·7·

·water quality at the state line.·8·

· · ·· Q.· ·Well, that's sort of two different things.·9·

·One is did they authorize discharges on the Tongue?10·

·And two is there's a different representation about how11·

·far they would make it.12·

· · · · · · There were direct discharges on the Tongue?13·

· · ·· A.· ·There were.14·

· · · · · · SPECIAL MASTER:··Is that a question?15·

· · · · · · MR. KASTE:··Yes.16·

·BY MR. KASTE:17·

· · ·· Q.· ·Were there direct discharges on the Tongue18·

·River?19·

· · ·· A.· ·Direct discharges on the Tongue?··Not since20·

·that 2002 time frame in Wyoming.21·

· · ·· Q.· ·All right.··Thank you.22·


· · · · · · Mr. Swanson, any redirect?24·

· · · · · · MR. SWANSON:··Your Honor, I don't have any25·



Page 3209

·further questions.·1·

· · · · · · SPECIAL MASTER:··Okay.··So thank you very·2·

·much, Mr. Compton, for your testimony.·3·

· · · · · · THE WITNESS:··Thank you, Your Honor.·4·

· · · · · · SPECIAL MASTER:··Okay.··It is 4:30.··And so·5·

·I'm trying to find my copy of the -- so we basically·6·

·will next have Mr. Roberts and Mr. Kepper; correct?·7·

· · · · · · MR. DRAPER:··Yes, Your Honor.·8·

· · · · · · SPECIAL MASTER:··And it's 4:30.·9·

· · · · · · MR. DRAPER:··I suggest, after discussing with10·

·my co-counsel, that we start Mr. Roberts first thing in11·

·the morning, and that we start again at 8:30.12·

· · · · · · SPECIAL MASTER:··That sounds like a great13·

·idea.··It sounds better than continuing right now when14·

·we probably wouldn't be very productive.··And at the15·

·same time, though, I want to try and make up the time16·

·that we've lost.··Although, as in many cases, it was17·

·with the experts, which is probably not surprising.18·

· · · · · · Mr. Kaste?19·

· · · · · · MR. KASTE:··I'm certain we're going to20·

·proceed with the following witnesses in much shorter21·

·time frames per witness because of the nature of their22·

·testimony being predominantly factual, and the nature23·

·of the expert testimony, particularly the dense24·

·material we got today and yesterday, take some time to25·



Page 3210

·go through.·1·

· · · · · · SPECIAL MASTER:··Yeah.··And just looking at·2·

·the calendar, that would certainly be what I would·3·

·think.·4·

· · · · · · What I would propose, though, is that both·5·

·tomorrow and Friday we start 8:30, just because the·6·

·more we can get in, the better.··And I assume the court·7·

·reporter will survive.·8·

· · · · · · So tomorrow, then we'll start with·9·

·Mr. Roberts.··And will we continue basically in the10·

·order that the witnesses were set out on the witness11·

·schedule that Montana sent around for this week?12·

· · · · · · MR. DRAPER:··Yes, Your Honor.··That is our13·

·intention.··And I think we're going to be able to14·

·follow that as we proposed it.15·

· · · · · · SPECIAL MASTER:··Okay.··Okay.··That sounds16·

·good.17·

· · · · · · By the way, I ran into the chief deputy for18·

·the court earlier today.··And it does not look good for19·

·being in here next week.··So that probably means we're20·

·going to go to the hearing room.··That's not bad.··It's21·

·going to be the boxes that will probably need to move.22·

· · · · · · And so I guess one of the things to start23·

·thinking about is will you need to move all of the24·

·boxes for next week, or will there be some possible way25·



Page 3211

·of consolidating?··If there's any way of consolidating,·1·

·I'm almost certain we can find some space around here.·2·

·But the problem is if it's one day, I can imagine you·3·

·consolidating to a couple boxes.··For a week, my guess·4·

·is maybe you need all of them.·5·

· · · · · · MR. KASTE:··We will try and be judicious·6·

·about what we take.·7·

· · · · · · SPECIAL MASTER:··Anyway, so we'll probably·8·

·need to stop early on Friday simply so people can get·9·

·the boxes out of the courtroom.··We've done pretty well10·

·in avoiding being kicked out.··But it looks like that's11·

·going to be the consequences of it being really busy12·

·next week.13·

· · · · · · MR. DRAPER:··Your Honor, so we'll be at the14·

·Montana Board of Oil & Gas Conservation next week?15·

· · · · · · SPECIAL MASTER:··That's right.··So what I16·

·would do is I would probably alert them right now that17·

·it looks like we'll be there next week.18·

· · · · · · MR. DRAPER:··Very good idea.··I'll do that19·

·this afternoon.20·

· · · · · · SPECIAL MASTER:··And then my proposal is we21·

·come back here for any other days that we need.22·

· · · · · · MR. DRAPER:··Very good.23·

· · · · · · SPECIAL MASTER:··Okay.··Great.··So sorry to24·

·end with that bad news.··But I figure the more warning25·



Page 3212

·you have, the better.·1·

· · · · · · So we are adjourned for the day.·2·

· · · · · · · · · · · (Trial Proceedings recessed at·3·

· · · · · · · · · · · 4:31 p.m., November 13, 2013.)·4·

··5·

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Page 3213

· · · · · · · · ·· REPORTER'S CERTIFICATE·1··· ·· · · · · · I, Vonni R. Bray, a Certified Realtime·2··· ··Reporter, certify that the foregoing transcript,·3··· ··consisting of 231, is a true and correct record of the·4··· ··proceedings given at the time and place hereinbefore·5··· ··mentioned; that the proceedings were reported by me in·6··· ··machine shorthand and thereafter reduced to typewriting·7··· ··using computer-assisted transcription.·8··· ·· · · · · · I further certify that I am not attorney for,·9··· ··nor employed by, nor related to any of the parties or10··· ··attorneys to this action, nor financially interested in11··· ··this action.12··· ·· · · · · · IN WITNESS WHEREOF, I have set my hand at13··· ··Laurel, Montana, this 12th day of February, 2013.14··· ··15··· ··16··· ·· · · · · · · · · · · · ·· ______________________________17·· · · · · · · · · · · · ·· Vonni R. Bray, RPR, CRR· ·· · · · · · · · · · · · ·· P. O. Box 12518·· · · · · · · · · · · · ·· Laurel, MT 59044· ·· · · · · · · · · · · · ·· (406) 670-9533 - Cell19·· · · · · · · · · · · · ·· (888) 277-9372 - Fax· ·· · · · · · · · · · · · ·· [email protected]··· ··21··· ··22··· ··23··· ··24··· ··25·


Documents

No. 137, Original · · · ·· IN THE SUPREME COURT OF THE …web.stanford.edu/dept/law/mvn/pdf/1-Volume_14.pdf · 10 · · Dr. Schreüder is finished, we'll be proceeding to 11