Volume 1 - EXTRA 2021 Year-End Issue

Introduction to the riveting opinion piece that follows

We thought it proper to end the launch year of Every Last Drop with an article that has received much attention. It was written by Richard M. Frank, Professor of Environmental Practice and Director of the California Environmental Law & Policy Center at the U.C. Davis School of Law. This thought-provoking piece paints a well-researched picture of "The Latest Chapter in Los Angeles’ Century-Long Water War With the Eastern Sierra’s People & Environment,'' as the piece is titled on Legal Planet (Legal-Planet.org), an independent, academic law and policy blog where Prof. Frank is a contributor and where it was published on Dec. 8 (and has since been republished in the water issues website Maven's Notebook). Locally, it ran as a Letter to the Editor in the November 25 issue of The Mammoth Times. To paraphrase the subhead assigned to Prof. Frank's submission to the Legal Planet Blog, his opinion piece looks at how LADWP's unilateral revocation of water allocation to Mono County's farmers and ranchers triggered a California Environmental Quality Act challenge in the courts. 

Through Every Last Drop, the Keep Long Valley Green Coalition (KeepLongValleyGreen.org) will continue to bring you relevant news on the turbulent history and complex issue of water for the benefit of Mono, Inyo and Los Angeles County residents, whose histories and destinies have been bound by the L.A./Eastern Sierra Water Wars. We hope you will share what you read in Every Last Drop with others to encourage more subscriptions (they're free!) to our e-newsletter in the New Year. If you are not yet a subscriber, please subscribe today using the link at the bottom of the newsletter. Happy Holidays!

--Wendy Schneider, Executive Director, Friends of the Inyo

_______________

County of Mono vs. LADWP Litigation Op-Ed

By Richard M. Frank

There LADWP goes again.

Recently the Los Angeles Department of Water and Power announced it was walking away from its longstanding obligation to provide Mono County residents and the environment with a tiny fraction of the water it transports from Mono County to LADWP’s customers in Los Angeles.  When efforts by county officials to resolve the dispute informally with LADWP failed, the County sued, arguing that LADWP’s unilateral action violates California’s most iconic environmental law, the California Environmental Quality Act (CEQA).  Earlier this year, a trial court agreed, ruling in the County’s favor.  The court found that LADWP’s decision to turn off the Mono County spigot without prior environmental review violates CEQA.  Now LADWP has chosen to appeal this adverse ruling to the California appellate court—where it is likely to lose again.

If LADWP’s action were an isolated incident, observers might well conclude that this is simply the latest chapter in California’s seemingly interminable water wars.  But it’s not.  To the contrary, LADWP has a sorry, 120-year history of treating the rural people and natural resources of the Eastern Sierra as a population to be exploited and an ecosystem LADWP is free to ravage.  Fortunately, the courts, state officials and environmental advocates have in the past repeatedly intervened to halt or moderate LADWP’s economic and environmental depredations.  Unfortunately, they need to do so again in order to stop LADWP’s announced water cutoff.

LADWP owns 6400 acres of land in Mono County.  It acquired those lands many years ago—primarily to obtain the water rights associated with that property.  For a quarter century, LADWP has leased the land to Mono County ranchers and farmers, agreeing to provide its tenants with a small allotment of water sufficient to provide for irrigation and livestock watering needs, along with wildlife habitat requirements.

That changed in 2018, when LADWP notified its tenants that for the first time LADWP water could no longer be used for irrigation and stock watering purposes.  LADWP’s unilateral decision effectively makes ranching and farming in this arid region impossible, and also deprives Mono County of important “co-benefits” the previously-supplied water has provided the local environment—including preservation of wetlands and critical wildlife habitat.

When the county’s efforts to negotiate a compromise solution with LADWP failed, the county sued.  In its lawsuit, the county argued that LADWP’s decision to stop delivering water to its tenants is a “project” under CEQA that has the potential to have a significant adverse effect on the Mono County environment.  Under longstanding CEQA law, such projects may not go forward unless and until the project proponent prepares an environmental impact report analyzing the adverse environmental effects of the project.
 

Richard M. Frank, Professor of Environmental Practice and Director of the California Environmental Law & Policy Center at the U.C. Davis School of Law (Faculty Photo).

_________________

LADWP responded to the county’s lawsuit by raising a variety of spurious and contradictory defenses: that the county had sued too early; that it had filed too late; that the county was required to pursue (nonexistent) administrative remedies before going to court; etc., etc.  Unsurprisingly, the trial court rejected each of LADWP’s arguments in a lengthy, thoughtful and comprehensive decision.  The court directed LADWP to maintain its water deliveries to its Mono County tenants until LADWP completes the environmental analysis required by CEQA.

(The county was aided in its lawsuit by the State of California: in a letter to LADWP that the trial court quoted in its decision, California’s Secretary for Natural Resources warned of “potentially devastating impacts to the natural environment, habitat and wildlife if [LADWP] pursues its proposal to upend 70 years of water management and practice by eliminating irrigation and stock water from its…leases.”)

Nevertheless, LADWP has chosen to appeal the adverse decision to the appellate courts, thus delaying resolution of this water conflict for another year or more.

LADWP’s actions are but the latest chapter in a sorry, 120-year history of the Department’s abuse of the people and environment of Mono County and its immediate neighbor to the south, Inyo County.  The outrage began at the beginning of the 20^th century, when LADWP agents masqueraded as local farmers and ranchers to buy up vast properties in Inyo County for the sole purpose of securing the water rights that came with the land.  LADWP then constructed (and later expanded) the Los Angeles Aqueduct to ship that water to Los Angeles for municipal purposes.  In the process, LADWP transformed a vibrant Inyo County economy and idyllic environment into a desert wasteland.  Indeed, one of the disastrous impacts was to turn Owens Lake into an alkaline dustbowl, destroying a vibrant ecosystem while creating an air pollution public health crisis that still plagues local residents.  (Predictably, LADWP disclaimed any responsibility for that environmental disaster until a lawsuit by the State of California prompted a settlement and expensive lakebed remediation project funded by the Department.)

In Mono County, the problems began in the 1940’s, when LADWP extended the L.A. Aqueduct from Inyo County north to Mono Lake.  There it proceeded to divert the freshwater streams feeding the lake into the aqueduct for shipment to Los Angeles.  The direct result was a precipitous lowering of the level of Mono Lake, a dramatic increase in the salinity of the lake’s water, and profound damage to local wildlife and the fragile ecosystem on which that wildlife depends.  Again, LADWP was unrepentant.  It took a decade-long lawsuit by environmentalists, an iconic 1983 decision by the California Supreme Court, and years of work by state water officials to produce a compromise solution that saved the iconic Mono Lake Basin while preserving LADWP’s ability to divert some water to Los Angeles.

Observers might expect—or at least hope—that LADWP would have learned from its sorry history of autocratic behavior and regional abuse.  Sadly, however, the Department seems intent on repeating it.

To be sure, water agencies like LADWP need the flexibility to address the water needs of a dynamic Southern California population center, increasingly severe and protracted droughts, and the long-term implications of climate change.  Mono County officials have acknowledged those facts.  They have signaled a commendable willingness to negotiate an equitable solution with LADWP.  LADWP officials would be wise to settle the pending Mono County lawsuit—a lawsuit they will likely lose (again) if LADWP pursues its flawed appeal.

_________________

Coming up: Do you know how a fish hatchery in Owens Valley works? Find out the mechanics, tourism and ecological sustainable solutions in the next issue of Every Last Drop.