3/10/2002 LADWP tries to evade its responsibility to 'avoid' impacts
At the Inyo County Water Commission meeting of February 4, 2002 LADWP's consultant Montgomery Watson Harza (MWH) gave a presentation regarding the Drought Recovery Policy (DRP). After hearing MWH categorically assert that the condition of native vegetation has no role in determining whether the DRP is still in effect, MWH was asked how it could justify this assertion.

MWH's response was that vegetation change is discussed in section I.C.1. of the Green Book, and, by implication this superceded the goal and methodology specified in the DRP itself. The passage of the Green Book cited, however, is a discussion relating to mitigation of pumping impacts that have already occurred. It is a discussion of how the Technical Group will determine, after the fact, that impacts are attributable to groundwater pumping and are candidates for mitigation.

This argument is disturbing. That is because in the ongoing McNally Canal dispute LADWP cited the same passage of the Green Book in its response to Inyo County's complaint. It is as irrelevant to the McNally Canals dispute as it is to the interpretation of the DRP.

The vegetation protection goals of the Water Agreement are to "avoid" certain prescribed impacts (section III. A.). In the EIR accompanying the Agreement, the "avoid" clause is mentioned repeatedly in response to public comments. In effect, people were told not to worry because implementation of the Water Agreement would "avoid" the occurrence of impacts. Section I.C.1. of the green Book (cited by MWH) is a last resort, to be used only when the Technical Group has failed to carry out its mandate to "avoid" impacts in the first place.

By citing section I.C.1. of the Green Book in both the McNally Canals dispute and in interpreting the DRP, LADWP is ignoring its clearly stated obligation to "avoid" impacts and arguing, implicitly, that its only obligation is to mitigate impacts after they have occurred and are permanent. If this argument is accepted, it will render much of the Water Agreement meaningless. Inyo County will be reduced to watching helplessly as impacts occur. It will be able only to ask for mitigation after impacts have occurred and are permanent rather than cooperating with LADWP to prevent impacts in the first place. It is unlikely that anyone in Inyo County would have ever accepted the Water Agreement had they thought this is what it really meant.

The McNally Canals dispute has gone to court. Because this is the first test of the "avoid" clause of the Water Agreement and of LADWP's arguments to evade it, the court's decision may affect much more that just the operation of the McNally Canals.

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