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9/6/2002 OVC and Sierra Club file request for relief statement after LADWP fails to release LORP DEIR

OVC and Sierra Club filed a request for relief with the Inyo County Superior Court after failure by LADWP and Inyo County to release the Lower Owens River Project Draft EIR by the court stipulated deadline of Aug. 31, 2002. Below is the statement which calls for the Court to order that the LORP DEIR be completed by Sept 30, 2002 and to impose penalties on LADWP if they fail to meet that deadline. The document is now more than two years late.


LAURENS H. SILVER (SBN 55339)
CALIFORNIA ENVIRONMENTAL LAW PROJECT
302 Sycamore Avenue
Mill Valley, California 94941
Telephone: (415) 383-5688
Facsimile: (415) 383-7995

Attorney for SIERRA CLUB


DONALD B. MOONEY (SBN153721)
LAW OFFICES OF DONALD B. MOONEY
129 C Street, Suite 2
Davis, California 95616
Telephone: (530) 758-2377
Facsimile: (530) 758-7169

Attorney for OWENS VALLEY COMMITTEE




IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF INYO



SIERRA CLUB, and OWENS ) Case No.: S1CVCV01-29768
VALLEY COMMITTEE )
) PLAINTIFFS’ STATEMENT
Plaintiffs ) REQUESTING RELIEF FOR
) DEFENDANTS’ FAIILURE TO
) COMPLETE AND RELEASE
v. ) THE DRAFT ENVIRONMETNAL
) IMPACT STATEMENT
CITY OF LOS ANGELES; LOS )
ANGELES DEPARTMENT OF )
WATER AND POWER; and )
COUNTY OF INYO )
)
Defendants ) Date: September 12, 2002
)
)
CALIFORNIA DEPARTMENT OF )
FISH AND GAME; and CALIFORNIA )
STATE LANDS COMMISSION )
)
Real Parties in Interest. )

I. INTRODUCTION

Pursuant to the terms of the 1997 Memorandum of Understanding (“MOU”) between the City of Los Angeles, the County of Inyo, the Sierra Club, the Owens Valley Committee, the Department of Fish and Game, and the California State Lands Commission, the City and County have had over five years to prepare a Draft Environmental Impact Report (“Draft EIR”) for the Lower Owens River Project (“LORP”). The purpose of the Draft EIR and the LORP is to implement a project that will mitigate the significant environmental impacts associated with the City’s extraction and export of groundwater from the Owens Valley that began in the early 1970s. Thus, for over 30 years, the City has received the benefits of its groundwater export project without having to implement measures to mitigate the project ‘s significant environmental effects. The City’s failure to timely complete and release the Draft EIR pursuant to the MOU, despite the two separate agreements granting an extension of time, and the failure to meet the August 31, 2002, date set forth in the Stipulation and Order in this action, are continuing examples of the City’s three-prong strategy of delay, delay and more delay.
II. DISCUSSION
A. The City of Los Angeles’ Groundwater Pumping and Export Program
In 1972, the County sued Los Angeles under the California Environmental Quality Act (“CEQA”), Public Resources Code, section 21000 et seq. to require the Los Angeles Department of Water and Power (“LADWP”) to prepare an EIR on its groundwater pumping to supply LADWP’s second aqueduct from the Owens Valley. The court directed LADWP to prepare an EIR. (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 816.) Although LADWP issued EIRs in 1976 and 1979, the Third District Court of Appeals found both to be legally inadequate. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 205; County of Inyo v. City of Los Angeles (1981)124 Cal.App.3d 1, 14-15.)
In October 1991, the County and LADWP approved the Inyo County/Los Angeles Long-Term Water Agreement (“Inyo-Los Angeles Agreement”) which is intended to provide environmental protection to the Owens Valley from the effects of Los Angeles’ groundwater pumping and water exports and to identify measures required to mitigate past and future damage to the environment of Inyo County as a result of the groundwater pumping. The Agreement provided a LORP project description and committed LADWP and the County to implement the LORP.
In connection with LADWP’s augmented groundwater pumping project and the Agreement, LADWP and the County completed a third EIR in October 1991. This Final EIR purported to address all water management practices and facilities associated with LADWP’s second aqueduct, and projects and water management practices identified in the Agreement.
Soon after its completion, the County and LADWP submitted the Final EIR and the Agreement to the Third District Court of Appeal with a joint request to discharge the writ of mandate. Shortly thereafter, the Sierra Club, the OVC, DFG, and the State Lands Commission, who were participating in the litigation between the County and Los Angeles as amici, raised concerns about the legal adequacy of the third EIR. In 1994, the Court of Appeals denied the County and City’s request to discharge the writ of mandate and ordered the County and LADWP to respond to the issues raised by the amici concerning the legal adequacy of the Final EIR.
B. The Memorandum of Understanding Requires the Preparation of an Environmental Impact Report for Implementation of the LORP Mitigation Measures

After several years of negotiations, on January 15, 1997, the parties executed the MOU that is now the subject of this litigation. A copy of the MOU is attached as Exhibit A to the Complaint. The Third District Court of Appeals subsequently approved the MOU. The MOU effectively ended twenty-five years of litigation and allowed the full provisions of the Agreement and the mitigation projects contemplated in the Final EIR and MOU to be implemented.
The MOU provides resolution of the concerns about the adequacy of the EIR, particularly concerns related to the adequacy of mitigation described in the EIR for impacts resulting from pumping and diversion activities in the Owens Valley from 1970 to 1990. The MOU required the City to develop, plan and carry out a number of measures to mitigate the adverse effects of the City’s project. The MOU includes provisions expanding the LORP, originally set forth in the Inyo-Los Angeles Agreement and the 1991 EIR. The1991 EIR identified the LORP as compensatory mitigation for significant adverse environmental impacts related to Los Angeles’ groundwater pumping from 1970 to 1990 that were difficult to quantify. The MOU specifies the goals of the LORP, the timeframe for development and implementation, and specific actions. It also provides certain minimum requirements for the LORP related to flows, locations of facilities, and habitats and species to be addressed.
Finally, the MOU requires LADWP, as the lead agency, and the County, as a responsible agency, to prepare an EIR for the LORP and issue a draft EIR for public review by June 13, 2000, and a Final EIR be completed and presented for certification as soon as possible following the release of the draft EIR. The MOU requires LADWP to commence the baseflow of 40 cubic feet per second (“cfs”) in the river channel by June 13, 2003. The MOU provides for the extension of the deadlines if all the parties to the MOU consent to the extension or due to circumstances beyond the control of LADWP and/or the County.
C. The Lower Owens River Project Provides for Mitigation of Significant Environmental Impacts Resulting From Los Angeles’s Groundwater Pumping Program

As compensatory mitigation for adverse environmental impacts attributable to the City’s augmented ground water pumping, the Lower Owens River Project includes the watering of a 60-mile stretch of the Lower Owens River channel below the aqueduct intake, the enhancement of environmental features along and near the river, and a pumpback facility near the Owens River Delta. The MOU provides for the development and implementation of an ecosystem management plan for the LORP that incorporates multiple resource values and provides for management based upon holistic management principles with certain minimum flows established in the MOU.
A major component of the LOPR is a pumpback station. The Inyo-Los Angeles Agreement specifies the pumpback station will have a capacity up to 50 cfs.
Rewatering the Lower Owens River through the LORP will provide significant riparian and fresh water habitats as mitigation for the substantial and adverse environmental impacts of LADWP’s ground water pumping which began in 1970. Assuring water for the Owens River Delta through the LORP will provide for the perpetuation and enhancement of the most significant marsh habitat remaining at Owens Lake.
The goal of the LORP is the establishment of a healthy and functioning Lower Owens River riverine-riparian ecosystem, and the establishment of healthy functioning ecosystems in the other physical features of the LORP.
There are four critical physical features of the LORP set forth in the MOU:
a. A continuous flow will be established and maintained in the river channel from at or near the intake structure that diverts the Owens River into the Los Angeles Aqueduct, to the pumpback system located near the river delta. A base flow of approximately 40 cfs from at or near the intake to the pumpback system to be maintained year round, as well as seasonal habitat flows of approximately 200 cfs during years of above-average flows.
b. The establishment of the Owens River Delta Habitat Area, which is to enhance and maintain existing habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other animals and to establish and maintain new habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other wildlife and fishery resources within the Habitat Area.
c. The maintenance and/or establishment of certain off-river lakes and ponds to sustain diverse habitat for fisheries, waterfowl, shorebirds, and other wildlife and fishery resources.
d. Creation and maintenance of a 1500 acre Blackrock Waterfowl Habitat Area.

D. The City and County Have Consistently Failed to Comply with the MOU’s Requirement for the Completion and Release of a Draft EIR

On January 14, 2000, LADWP released a Notice of Preparation of a Draft EIR for the Lower Owens River Project. On March 27, 2000, at LADWP’s request, the MOU parties agreed to extend the deadline for completing the draft EIR for the project from June 13, 2000, to September 30, 2000. The extension provided for the draft EIR to be released on September 30, 2000. LADWP and the County, however, did not complete the LORP Draft EIR by September 30, 2000, as required in the agreed upon time extension. LADWP did not seek an extension of the September 30, 2000, deadline prior to September 30, 2000. Nor did LADWP seek an extension any time prior to March 2001.
After three meetings of the MOU parties in March 2001, the City agreed to produce a draft EIR by October 26, 2001. The extension agreement required that an administrative draft of the EIR be prepared by July 3, 2001, with comments by LADWP and the County to be submitted to the EIR consultant by September 4, 2001. By email to the MOU parties on July 9, 2001, the Inyo County Water Department confirmed that the Water Department and LADWP had on that date received from John Gray of URS Corporation the Administrative Draft EIS/EIR for the LORP. By email on August 30, 2001, John Gray, Manager of Environmental Services for URS Corporation (the EIR consultant), informed the MOU parties that he had “received comments on the administrative draft EIR/EIS from LADWP, Inyo County, and EPA, which were to be received on or before September 4, 2001 per the agreement with the MOU parties.” Despite the completion of the Administrative Draft EIS/EIR, on October 4, 2001, John Gray informed, LADWP, the County, and EPA that additional time would be needed for release to the public of a Draft EIR. In a memorandum dated November 6, 2001, from Gene Coufal of LADWP to the MOU signatories, LADWP informed the MOU parties that February 18, 2002, would be the “most realistic date” for release of the LORP draft EIR.
In December 2001, Plaintiffs filed this action to compel completion and release of the Draft EIR for the LORP. Now nine months after the initiation of the litigation, 2 years past the original MOU deadline, and over five years from the effective date of the MOU, LADWP and the County have failed to complete and release the Draft EIR.
E. Los Angeles and the County Have Failed to Comply with the Stipulation and Order Requiring the Completion and Release of the Draft EIR by August 30, 2002.

By Stipulation and Order filed on May 30, 2002, the Los Angeles Department of Water and Power and the County of Inyo were directed to complete and release to the public by August 31, 2002, a Draft Environmental Impact Statement (“Draft EIR”) for the Lower Owens River Project. Exhibit A to the Stipulation and Order contained a work schedule that identified the tasks and completion dates for each of the respective tasks so that the Draft EIR would be completed and released to the public by August 31, 2002.
As part of the Stipulation and Order, Los Angeles and the County were directed to submit status reports to the Court, either jointly or separately, on July 1, 2002, July 31, 2002 and August 15, 2002. The Stipulation and Order required that the Status Reports include information on whether the work has proceeded according to the work schedule; a description of any work that had not been completed according to the work schedule; an explanation of why any work required by the schedule to have been completed, has not been completed; a statement of whether the failure to complete any work required to be completed by the Schedule will potentially delay the completion and release of the Draft EIS by August 31, 2002; and a description of any foreseeable problems that may delay completion and release of the Draft EIS beyond August 31, 2002.
Pursuant to the Stipulation and Order, Los Angeles and the County, timely submitted Status Reports on July 1, 2002, July 31, 2002, and August 31, 2002. The July 1, 2002, Status Report revealed that a number of the tasks identified in the work schedule had not be completed and that the Draft EIR would be delayed four weeks beyond the August 31, 2002, deadline. (Draft EIR/EIS Status Report, July 1, 2002, at p. 6.) The Defendants’ July 31, 2002, Status Report indicated that work still had not been completed pursuant to the work schedule attached to the Stipulation and Order. (Draft EIR/EIS Status Report, July 31, 2002, at pp. 3-4.) The Defendants, however, stated that “there are no foreseeable problems that may delay the completion of the EIR/EIS beyond September 30, 2002.” (Id. at p. 4.) This statement was repeated in the Defendants’ August 15, 2002, Status Report with the caveat that there is a potential issues associated with the project description that may delay completion and release of the document beyond September 30, 2002. (Draft EIR/EIS Status Report, August 15, 2002, at p. 4.)
III. PLAINTIFFS REQUEST THAT THE COURT DIRECT COMPLIANCE WITH THE MOU AND IMPOSE SANCTIONS ON THE CITY OF LOS ANGELES

A. The Court Should Order that the Draft EIR be Completed and Released by September 30, 2002.

Based upon Defendants’ three status reports indicating that a Draft EIR would be completed and released by September 30, 2002, Plaintiffs respectfully request that the Court issue an order directing Defendants to complete and release for public review the Draft EIR no later than September 30, 2002.

B. The Court Should Enjoin Los Angeles From Exporting Groundwater if the Draft EIR is not Completed and Released

The Plaintiffs further request that if the Draft EIR is not released by September 30, 2002, that the Court immediately issue an Order to Show Cause to the City and County, directing the City and County to show cause why they have not complied with the Court’s Order relating to preparation of the Draft EIR by September 30, 2002, and ordering the City to show cause why its project of groundwater pumping and export of groundwater initiated in 1970, but for which no adequate mitigation has been implemented, ought not to be enjoined in part, or in whole, or otherwise curtailed.
As Los Angeles has been allowed to extract and export groundwater for over thirty years without having to mitigate for the environmental impacts, Plaintiffs believe it is necessary and appropriate for the Court to consider enjoining Los Angeles from extracting and exporting groundwater from the Owens Valley if Los Angeles cannot show good cause. Such injunction would not apply to the extraction of groundwater for uses within the Owens Valley.
In the event that a Draft EIR is not produced by September 30, 2002, Plaintiffs request that the County, in its return to the Order to Show Cause, provide the Court with a plan for reducing, by order of this Court, the City’s augmented groundwater pumping project. Such plan will indicate by what amount groundwater pumping needs to be reduced, specify the particular pumps that will be affected, and indicate the expected mitigation of past environmental impacts anticipated, or indicate how a specific resource will be enhanced. The County’s plan, in lieu of reduced groundwater pumping, may include, ordering the City to release flows into the Lower Owens River, consistent with the flow regimes mandated by the MOU, until such time as the Final EIR is completed.
Plaintiffs believe that the City and County may not have reached an agreement on the Project Description, which is an essential element of a draft and final EIR. (CEQA Guidelines, § 15124; County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 199.) In their respective responses to the Order to Show Cause, the Court should direct the Defendants to state their respective positions on the project description. If agreement is not reached on the project description by the time Defendants respond to the Order to Show Cause, this Court should proceed, as a matter of law, to determine the project description, consistent with CEQA Guidelines, section 15124.
Upon completion and release of the Draft EIR, Los Angeles would be allowed to resume its groundwater extraction.

Dated: September 5, 2002.
Respectfully submitted,



By:
LAURENS H. SILVER
Attorney for Plaintiff Sierra Club



By:
DONALD B. MOONEY
Attorney for Plaintiff
Owens Valley Committee

PROOF OF SERVICE

I am employed in the County of Yolo; my business address is 129 C Street, Suite 2, Davis, California; I am over the age of 18 years and not a party to the foregoing action. On September 5, 2002, I served a true and correct copy of

PLAINTIFFS’ STATEMENT REQUESTING RELIEF FOR
DEFENDANTS’ FAILURE TO COMPLETE AND RELEASE
THE DRAFT ENVIRONMENTAL IMPACT STATEMENT

X (by mail) on all parties in said action listed below, in accordance with Code of Civil Procedure §1013a(3), by placing a true copy thereof enclosed in a sealed envelope in a United States mailbox in the City of Davis, California.

(by facsimile transmission) to the person at the address and phone number set forth below:

(by overnight delivery service) via Federal Express to the person at the address set forth below:

Paul Bruce
County of Inyo
224 North Edwards Street
P.O. Box M
Independence, CA 93526
Representing Defendant
County of Inyo
Gregory L. James
Inyo County Water Department
163 May Street
Bishop, CA 93514
Representing Defendant
County of Inyo
Arthur Walsh
City of Los Angeles
111 North Hope Street, Suite 340
P.O. Box 51111
Los Angeles, CA 90051-0100
Representing Defendants City of
Los Angeles and Los Angeles
Department of Water & Power

Gordon B. Burns
Deputy Attorney General
Office of the Attorney General
1300 I Street, Suite 1101
P.O. Box 944255
Sacramento, CA 94244-2550 Representing Real Parties in Interest
California State Lands Commission
and California Department of Fish
& Game


I declare under penalty of perjury that the foregoing is true and correct. Executed on
September 5, 2002, at Davis, California.



Donald B. Mooney

Contacts:  Mark Bagley markbagley@qnet.com Phone: 760-873-5326