News

6/15/2004 Lower Owens River Project Update

(This article has been reprinted with the permission of the author, Darla Heil)

Nume Muna a Paya
"Our People's Water"
Originally printed in
Newsletter of the Owens Valley Indian Water Commission, Spring 2004, Vol. 6(1)

Water politics in the Owens Valley – sometimes bewildering, often
overwhelming, but never dull and seemingly never resolved. For those who
try to keep up with the water-based environmental issues of the Owens
Valley, the past year has been a particularly busy one. Lately it seems as
if the Los Angeles Department of Water and Power (LADWP) staff has been
working overtime to come up with new ways to squeeze more water out of this
wonderful valley that we call home. Because it’s difficult to stay
informed about local water issues, we decided to include an article in each
of our next few newsletters to highlight and summarize some of the more
important water issues and proposed projects that are being dealt with in
the Owens Valley at the time of writing.

Sometimes I like to imagine what the Owens Valley must have looked like
before LADWP began exploiting the valley’s water resources. To furnish my
imaginings I refer to an 1859 report by J.W. Davidson detailing an
expedition he lead through the valley during July and August of that year.
Davidson wrote, “…I then marched as far as the Canyon of Owens River
through some of the finest country I have ever seen. It may be said
literally to be a vast meadow, watered every few miles with clear, cold
mountain streams, and the grass (although in August) as green as in the
first of spring.” It is unfortunate that in the intervening 145 years the
Owens Valley’s environment seems to have slid so far down the slippery slope
that is desertification, a process that was begun in the early twentieth century
when LADWP began exporting water from the Owens Valley through the first LA
Aqueduct to the thirsty young city of Los Angeles.

This article will discuss recent developments in the attempt to implement a
mitigation project whose completion date is long overdue, the Lower Owens
River Project (LORP). The LORP was first identified in LADWP’s 1991
Environmental Impact Report (EIR) as a compensatory (counterbalancing)
mitigation for the hard to identify and quantify negative impacts that
groundwater pumping and export have had on the environment of the Owens
Valley, especially since 1970, when LADWP’s second aqueduct began being
filled in part with pumped groundwater. Inyo County and LADWP committed to
the LORP as a mitigation project in 1991, when they entered into the
Inyo/Los Angeles (LA) Water Agreement. Subsequent to that agreement, a 1997
Memorandum of Understanding (MOU) settlement, provisions of which further
defined the LORP, was entered into by Inyo County, LADWP, the California
Department of Fish & Game, the State Lands Commission, the Sierra Club, and
the Owens Valley Committee to end 25 years of litigation over Owens Valley
water.

Under the Inyo/LA Water Agreement and the 1997 MOU, the County and LADWP committed to
rewatering the full 60-mile reach of the Lower Owens River that was diverted
to the Los Angeles Aqueduct in 1913 to supply water to the city. The
project is also supposed to create or enhance riparian and wetland habitats
for a wide variety of species by providing permanent water supplies to
several lakes and ponds and to two waterfowl and shorebird habitat areas
totaling approximately 1,800 acres, while providing recreational
opportunities and preserving the historical uses of the land. Water for the
project is to be supplied by LADWP from the LA Aqueduct and, according to
the 1997 Inyo/LA Water Agreement, is to be returned to LADWP’s water
conveyance systems via a 50 cfs pump station to be constructed above the
Owens River delta. It was planned that some of the water from the LORP
would bypass the pump station to provide water to the delta for habitat
enhancement. Prior to implementation of the LORP, it was stipulated that
the project must undergo a California Environmental Quality Act (CEQA)
review separate from the 1991 EIR (which described the Inyo/LA Water
Agreement). Because federally allocated funds were slated to be provided
for the project through the U.S. Environmental Protection Agency (EPA) it
was necessary that the LORP EIR, which is state mandated under CEQA, be
expanded into a joint document incorporating an Environmental Impact
Statement (EIS), which is federally mandated under the National
Environmental Policy Act (NEPA) for projects using federal funding. Thus
the environmental assessment that must precede implementation of the LORP
became a joint EIR/EIS. Under the Inyo/LA Water Agreement construction of
the project was supposed to begin within three years of the Court’s approval
of the agreement, or by 2000, unless delays were agreed to by the county and
LADWP. Under the MOU a 40 cubic feet per second (cfs) baseflow of water was
supposed to be released to the river by June 2003, with any delays in that
date needing approval from all of the MOU signatories.

That was the plan; however, the reality is that by May 2004, almost a year
after the LORP was to have been fully implemented, the project is still far
from completion. In the view of many observers, after LADWP committed to
implementing the project by signing the Inyo/LA Water Agreement and the MOU
in 1997 they have used every opportunity to delay implementation of the
LORP. This perceived lack of a good faith effort to complete the project on
LADWP’s part is not particularly surprising when we consider that the water
that will be used to run the LORP will reduce LADWP’s profits, which in part
are earned from the export of water from the Owens Valley. LADWP has much
to gain by stalling the project for as long as possible. As a result of
LADWP’s delaying tactics, seven years after the agreements were signed and
almost a full year after baseflows were supposed to be established in the
river, the LORP EIR/EIS, completion of which is the first step in the
implementation process, has still not been completed, much less the design,
permitting, and construction of the facilities needed to implement the
project.

Another result of these delays is that local volunteer citizens groups have
been forced to take the legal lead in forcing LA’s hand to proceed with
implementation of the LORP. During December 2001, the Sierra Club and the
Owens Valley Committee (OVC) sued LADWP over their failure to prepare the
LORP Draft EIR after LADWP missed yet another deadline for completion of the
draft in October 2001. Soon thereafter, LADWP implicated Inyo County in the
suit because the LORP is a joint project between LADWP and the County. As a
result of this litigation, the court ordered that the Draft EIR/EIS be
completed and released for public comment by November 1, 2002 with the
possibility of court-ordered sanctions if the deadline was not reached.
Thus compelled, LADWP released the Draft EIR/EIS on the court imposed
deadline, after five years in preparation.

The Draft EIR/EIS contained at least one major 6-month delay built into the
document. This delay involved LADWP’s insistence that they are allowed to
build a 150 cfs pump station above Owens Lake (three times as large as the
pump station agreed to in the Inyo/LA Water Agreement). LADWP
included the large (150 cfs) pump station as an alternative in the LORP
Draft EIR/EIS, while declining to actually design the smaller 50 cfs pump
station. The Draft EIR/EIS informed the public that if the smaller pump
station were eventually picked as the preferred alternative for the LORP,
it would delay implementation of the project for six additional months,
which length of time LADWP declared they would need to design the smaller pump
station.

The size of the pump station was a highly contentious issue
because it was feared that if LADWP were allowed to build the larger pumpback
facility, it could turn what had been designed as a long term
groundwater pumping mitigation project into an opportunity for LA to pump
and export groundwater from the east side of the Owens Valley. The fear was
that if the large (150 cfs) pump station were constructed for the LORP,
LADWP could use the Lower Owens River to convey water pumped from the east
side of the Owens Valley, which was previously inaccessible for export
because it would have to be pumped uphill to reach the LA Aqueduct, to the
pump station where the water could effectively be pumped to the aqueduct.
The fact that LADWP entered into an $8 million contract in 2001 with
Montgomery Watson Harza (MWH), in which a specific task was written
instructing the consultants to explore the possibility of locating
production wells on the east side of the Owens Valley, seemed to justify
these fears.

In December 2003, the California State Attorney General’s office joined the
Sierra Club and the OVC in their lawsuit against LADWP regarding missed LORP
deadlines, among other issues. In February 2004 the parties to the lawsuit,
who are also signatories of the 1997 MOU (LADWP, Inyo County, the Sierra
Club, the OVC, California Fish & Game, and the State Lands Commission),
signed a second agreement, a LORP Stipulation and Order, in which LADWP
agreed to: 1) abandon their plans for a 150 cfs pump station for the LORP
and instead to construct the 50 cfs pump station, as was originally agreed
upon; 2) court stipulated deadlines for completion of different parts of the
LORP including a deadline of June 23, 2004 for completion of the Final
EIR/EIS; 3) court mandated status reporting of progress on implementation of
the LORP; and additional stipulations on assorted other mitigation-related
projects.

By mid-March 2004 LADWP and Inyo County had already missed deadlines set
forth in the Stipulation & Order (S&O), which had only been finalized a
month earlier. Because Inyo and LA failed to reach agreement on work plans
for two of the mitigation projects by the date set in the S&O, the court
(Judge Denton) began to hold mandatory settlement hearings to help settle
the disputes and move the mitigation projects along.

On April 9th, in a scheduled biweekly status report, LADWP declared that, under current
working conditions and due to lack of agreement between LADWP, Inyo County
and EPA in dealing with revisions to the Draft EIR/EIS and responses to public
comment, the Final EIR/EIS would be 26-31 weeks late. Inyo County then
suggested “tiering” the Final EIR/EIS so that the project
could move forward while the final environmental document was completed.
The County’s suggested Tier One would address the pump station and flows,
and would be completed by the June 23rd deadline, so that there would be no
delay for the release of water into the river. Tier Two would address
monitoring and adaptive management and would allow those details to be
worked out over a longer period of time without delaying the release of
water to the river. Since the County recognized that the “tiering” scheme
would require EPA approval, EPA and the Attorney General’s Office were
contacted, and on 4/29/04, Greg James (Inyo County Water Department)
notified Art Walsh (LADWP attorney) that the EPA and Attorney General’s
Office were both willing to work on tiering the environmental document and
that EPA would check to see if agency funding could be released for LORP
construction prior to release of the second tier environmental document so
that water could be released to the river on schedule. In the same message
Mr. James included a brief description of two possible approaches and legal
precedents for tiering the environmental document and asked Mr. Walsh if
LADWP was willing to work on a tiered approach to completing the Final
EIR/EIS to avoid further delays in the project.

On May 10th in a status report LADWP rejected working on a tiered approach
to completing the Final EIR/EIS, arguing that either approach would violate
or circumvent CEQA. However, in a letter to Judge Denton dated May 10th
Gordon Burns of the Attorney General’s Office disagreed with LA’s position
that either of the two possibilities for a tiered approach suggested by Inyo
County would necessarily violate or circumvent CEQA, and pointed out that LA
is already in violation of CEQA by not having already implemented the LORP.

In the May 10th status report LADWP offered the following three options for
completing the final environmental documents: Option 1) LADWP would stop
working with Inyo County and EPA on completing the Final EIR/EIS and would
work with only their consultant MWH in completing an Final EIR by the June
23rd deadline. LA noted that the Final EIR thus produced “will be an
awkward document” lacking in summaries and organization and containing
inconsistent areas unless LA was given an extra month to work on the Final
EIR with MWH. Walsh’s letter suggested that upon completion of the Final
EIR, LADWP and MWH staff would work with Inyo County and EPA to complete the
Final EIS. Option 2) Continue working on the document with all of the
agencies and LADWP’s consultants and be given a time extension of 26 to 31
extra weeks, or more, to complete the document. Option 3) Inyo County and
EPA would be given a limited amount of time to complete their review of the
document and give comments after which LADWP and MWH would incorporate those
comments as deemed appropriate. This option would require an extension of
at least 180 days. LADWP also noted that they would require a time
extension to complete a Quality Assurance Project Plan (QAPP), for which EPA
approval is needed before EPA funds can be released to be used for the
collection of environmental data for the project. During a May 10th
conference call with Judge Denton, the Sierra Club, OVC, and Attorney
General’s Office attorneys refused LADWP’s request for a time extension for
completion of the LORP Final EIR/EIS.

On May 11th LADWP attorney Art Walsh sent an e-mail message to Inyo County
and EPA telling them that after the status conference on the previous day
with Judge Denton and the other parties, LADWP had determined that they were
compelled to complete the FEIR/FEIS by June 23rd, and that to do this they
would cease working with the County and EPA on the document and would
henceforth work only with their contractors, MWH, to complete the document.
Walsh said that LADWP would attempt to incorporate comments in the document
received from EPA and the County prior to May 14th. On May 17th, Janet
Parrish of the US EPA wrote LADWP to remind them that EPA funding for the
project could be jeopardized if environmental measurements are taken before
obtaining EPA approval on a Quality Assurance Project Plan for LORP data
collection. Ms. Parrish also reiterated that EPA funding for the project
(which currently totals over $6 million to both LADWP and Inyo County)
cannot be released if LADWP’s environmental document does not meet EPA
requirements under NEPA so that the final document cannot be released as a
joint EIR/EIS. Without an EIS, federal funds cannot be released for the
project. Ms. Parrish wrote of EPA’s continued wish to investigate
proceeding with the project under the tiered approach as suggested by Inyo
County and offered mediation services for the issues.

Finally, in the latest LORP developments, in the May 21st status report to
the court, LADWP reported that the LORP Stipulation & Order deadline for
release of an Administrative Draft of the Final EIR/EIS (May 3rd) had not
been reached and declared that the LADWP most likely would not provide Inyo
County or EPA with an Administrative Draft before the June 23rd scheduled
public release of the Final EIR/EIS. The OVC, the Sierra Club and the
Attorney General's office are currently discussing preparations for filing a
motion to the court dealing with LA's non-compliance with CEQA, since the
LORP is long overdue. As a further complication, on May 24th the parties to
the LORP Stipulation and Order received notice that Judge Denton has
formally withdrawn from the case.

In future newsletters we will attempt to keep the Tribal people of the Owens
Valley informed about progress on implementation of the LORP. We’ll also
attempt to inform our readers about the numerous other projects that LADWP
has recently proposed which potentially threaten the environmental of the
Owens Valley and at the same time attack the viability of the Inyo/LA Water
Agreement. The issues that are at the top of our list of concerns right now
include: 1) LADWP’s proposal to reduce irrigation on their leased lands
beginning in 2004 and their declaration that a Mitigated Negative
Declaration fulfills their CEQA obligations for a project of this scope that
they need not disclose the range of possible negative impacts that
implementation of such a project could have on the valley; 2) LADWP’s
refusal to shut down deep well tests at Wells 380 and 381 after Inyo County
requested discontinuance of the cooperative study test; 3) LADWP’s
continued pumping at Reinhackle Springs without a County approved pump
protocol and without the installation of any monitoring wells, in violation
of the Inyo/LA Water Agreement; 4) LADWP’s progress in their plan to
construct new production wells on the Bishop Cone; 5) LADWP’s plans for
pumping at Well 416 near Lone Pine; 6) the failure of the Three-Year
Interim Pumping Plan Agreement; and 7) LADWP’s attempted unilateral
abandonment of the Drought Recovery Policy. We are also interested in
reporting updates on the Big Pine Ditch System and on the Laws Irrigation
Project.

Those who are interested in getting more information on these issues can use
a home computer to access the Internet to discover many sources of
information concerning Owens Valley water and environmental issues. The
following websites were used as some of the sources of information for this
article and can be accessed to further investigate the Owens Valley’s
ongoing water struggles:
Inyo County Water Department – www.inyowater.org,
Owens Valley Committee – www.ovcweb.org,
California Native Plant Society, Bristlecone Chapter –
www.bristleconecnps.org/Conservation, and
LADWP – www.ladwp.com.

Contacts:   Phone: