9—
Eve of Decision
My lord, you do not well in obstinacy To cavil in the course of this contract: If once it be neglected, ten to oneWe shall not find like opportunity.
Shakespeare, Henry VI, Part 1
As the 1980s turned into the 1990s, the Mono Lake action came to focus more and more on the coming confrontation before the State Water Resources Control Board.
In Sacramento, the water board and its consultants were launching a vast project of information-gathering and analysis that would culminate in a Draft Environmental Impact Report 1,700 pages long.
In Los Angeles, the Mono Lake Committee and the city were struggling to come together on a plan to harvest the $60 million promised by AB 444.
In the Mono Basin, consultants and engineers were beginning the process of repairing some of the damage done to the creeks by fifty years of diversion.
The courts, in Sacramento and in South Lake Tahoe where Judge Finney presided, were busy as usual with Mono matters.
And in Bishop, California, and Washington, D.C., like a reserve squadron mustering, the dust pollution issue was taking actionable form.
After June 15, 1989, Los Angeles exported not a drop from the Mono Basin. Starved by a purely natural drought, the lake nonetheless continued to drop. Negit Island once more became a peninsula and lost its nesting gulls. In another replay, the Forest Service built a fence—electrified, this time—across the land bridge (this one didn't work, either). As it had in the late 1970s and early 1980s (but with rather less justification) the Mono Lake Committee beat the drums of alarm. The word catastrophe was used.
For anyone familiar with the recent history of the lake, it was hard to work up much
of a sweat about the new drop in the water level. The higher salinities probably cost the ecosystem some of its productivity, yet experience suggested that it was nowhere near collapse. The gulls, for their part, obstinately continued to prosper.
But it is worth recalling just how much further the lake might have fallen if Judge Finney had not blocked Mono Basin exports. If Water and Power's "trial operation plan" of 1990 had been carried out, the lake would have sunk below its previous historic nadir. Twain islet, which now appeared to be the key gull rookery, would have become a peninsula and have stayed that way, with unknown effects. And the lake would have turned saltier than ever before.
What happened in Los Angeles as the drought deepened and Mono water remained out of reach? In a way this is the biggest story of all, for what happened was . . . nothing much. Some serious conservation efforts worked and the Metropolitan Water District played its intended role as backup source. The city lived without Mono water almost as though Mono water had never existed. Of the long-feared backlash—the public political wrath that would sweep away the consensus for saving the lake and the streams—there was no sign.
At a key hearing later on, a Los Angeles citizen was to announce his willingness to pay higher water rates to save Mono Lake. The hearing officer would then point out, "If you were going to feel it on your water bill, you would have felt it by now."
The Water Board Takes Over
When Judge Finney handed the Mono issue to the water board, he temporarily relegated his own court to the sidelines. For the next several years the real action would take place behind the scenes at the water board and in the offices of Jones & Stokes of Sacramento, the consulting firm selected to write an Environmental Impact Report (EIR) setting out the effects of various possible management plans for the lake and the feeder streams.
An EIR has an almost ritual format. It begins by describing, in great detail, the place where a proposed project is to be built or carried out. Then it sketches a number of alternative courses of action, including the option of doing nothing at all, and describes how each choice will affect the place and the wider world. On this basis, one alternative is identified as environmentally the best. EIRs are supposed to be complete and honest in their presentation of effects; if they are not, court challenges can be brought. But the agency making the final decision does not necessarily have to adopt the option that looks best in the EIR.
In the case of the Mono Basin, this standard process had to work around several thorny problems. First, what was the "project"? It was not the Mono Extension of 1940, nor was it the city's past diversions. Rather, the "project" was the current effort to rewrite the rules governing the activities of Los Angeles at Mono Lake.
What, in that case, was the "environment," the "before" picture, the pre-project
scene? More accurately, when was it? Jim Canaday, the project manager on the water board staff, chose a baseline in the summer of 1989, just before the moment when Judge Finney stopped exports and handed the issue to his agency. That choice had its logic, but it also had a very obvious drawback. If 1989 was taken as the basis of comparison, the vast changes that had occurred since 1940 would drop out of the picture; a future of low lake levels and low streamflows would look better than it ought to.
To solve this problem, Canaday ordered the team to add a second starting point, a second measuring stick. The effects of possible actions would be judged not only against 1989 conditions but also against those of 1940. This binocular approach was a novelty in the EIR trade. Neither the L.A. Department of Water and Power nor the growing list of Mono advocates liked it much. The department wanted less concentration on 1940 conditions; the Mono Lake Committee, the Audubon Society, and the Department of Fish and Game wanted much more. Yet Canaday's awkward solution was probably the best that could be had.
As the work plan unfolded, the parties continued to lobby for ground rules each thought favorable to its cause. According to Canaday, Water and Power sought to direct attention to alternative plans with a low lake and a lot of water export, while lake advocates tried to focus on high lakes and low exports. Canaday resisted both tilts: Jones & Stokes would study a wide range of levels (though none below 6,372 feet).
What about the dust problem? The department wanted the issue left out entirely, on the grounds that the legislature had exempted them from state air pollution laws (in 1983). They argued—unsuccessfully, however—that what the federal government might do or might force the state to do was outside the water board's jurisdiction.
Again, how much attention should be paid to the effects of different Mono policies on fishing and recreation spots elsewhere along the line of the aqueduct? Grant Lake reservoir was itself an attraction. Much more so was Crowley Lake, the reservoir behind the Long Valley dam. (On the opening day of fishing season Crowley's shores resemble a stadium parking lot.) These bodies of water, the department liked to point out, received hundreds of times more use than the controversial Mono Basin streams ever had or ever would. Different amounts of Mono diversion might mean different amounts of water in the two reservoirs.
Then there was the upper Owens River, the wandering stream that has served since 1941 as a natural conduit for Mono export water between East Portal and Crowley Lake. The river had been a trout stream of national note in the 1930s. After the Mono water poured into it, the stream adjusted to the larger and much more variable flow by widening and straightening its course. As long as flows remained artificially high, fishing remained excellent. But if Mono export were permanently decreased, it seemed likely that the fishing in the upper Owens would suffer, at least for a time.
The Audubon Society and the Mono Lake Committee were sympathetic to these
"downstream issues" but wanted them kept out of the EIR. So did the Forest Service. Again, though, the wider view was chosen.
The Great Gathering
What followed was a vast, compound research project that stitched together everything already learned about the lake and added a great deal more besides. Most of the veterans of Mono Lake studies launched into another round.
David Herbst took another look at the effects of salinity on alkali flies, using what he called "microcosm studies." He set up twenty 130-gallon tanks containing sediments, algae, flies, and lakewater of different concentrations and watched them for numerous fly generations. Besides confirming that high salinities were harmful, Herbst's microcosms showed that the fly population responded to very low salinities with an increase in vigor.
Margaret Rubega studied red-necked phalaropes and made an accidental discovery. Trying to maintain captive birds in the lab on a diet of brine shrimp (convenient for the staff) she found that the animals wouldn't touch Artemia monica unless they were near starvation. (She changed the food.) Her work in the lab and on the lake confirmed that this phalarope depends on the alkali fly absolutely—and suggested that present fly crops in the lake were already less than optimal for this bird.
Scott Stine produced no fewer than five special reports, discussing historic vegetation along the streams; wetlands fringing the lake; the distribution of pumice blocks and other hard substrates important to the alkali fly; and the effects of different lake levels on tufa displays and on the configuration of the islands.
This being the 1990s, computer models were made of several aspects of the case. Herbst and others designed one for flies; Gayle Dana, John Melack, and Bob Jellison did one for shrimp. There were models to predict dust storms, models for water and energy supply and demand, and very important hydrologic models called LAAMP and LAASM (Los Angeles Aqueduct Monthly Program and Los Angeles Aqueduct Simulation Model). Here Peter Vorster was heavily involved.
On the low-tech side, the Mono Lake Committee took the lead in scaring up information about the pre-diversion days. Ilene Mandelbaum and others interviewed oldtimers, combed ragged archives, and put out a call for historic photographs. One valuable collection turned up scattered around an abandoned house in Chatsworth, California. The committee secured access to hundreds of photos, postcards, and films made in the 1920s by local photographer Burton Frasher: early images of gulls on Negit, crater lakes on Paoha, tourists on excursion boats, bathing beauty contests, speedboat races, and Paiute basketmakers.
And it all poured into the office of Jones & Stokes in Sacramento, a river of paper that at times could probably have been measured, like Mono Basin streamflows, in cubic feet per second.
Caltrout II
After the 1989 court decision known as CalTrout I, the State Water Resources Control Board was expected to modify Los Angeles's water diversion licenses to guarantee adequate streamflows in the Mono Basin creeks. But the board was now settling in to consider all the Mono Basin issues together and at leisure. It proposed to add streamflow requirements to the licenses at the end of this multi-year process, not at the beginning. In the meantime, the board alleged, it had no authority to impose higher interim flows. The Department of Water and Power, understandably, agreed, arguing that although its diversions were officially stamped unlawful, any further interference with them must await due process. In July of 1989, Sacramento Superior Court Judge Cecily Bond agreed to the delay.
But Audubon and CalTrout weren't willing to wait to cash in their chips. Back they went to the Third District Court of Appeal. On February 23, 1990, the appellate court, angered at the stalling, gave them what they asked. It jerked the case out of Judge Bond's hands and handed it to Judge Finney for final action. Via Finney, it directed the water board to add the following specific language to the department's diversion licenses: "The licensee shall release sufficient water into the streams from its dams to reestablish and maintain the fisheries which existed in them prior to its diversion of water." This provision applied by implication not only to Rush and Lee Vining creeks but to Parker and Walker creeks as well.
This was remarkable language. For this time the court did not speak of maintaining some fish in the streams; it did not speak of maintaining fish "in good condition," the language of the Fish and Game Code. Rather, it required the restoration of the fish resource that had been there in 1940 .
Given the punishment the streams had taken since that year, such a restoration might well require more than water. Water and Power lawyers had unwisely called this fact to the judges' attention; in opposing stream releases for Parker and Walker creeks, they had stated that the degraded channels "may or may not be capable, in their present condition, to [sic ] sustain any fish life at all." In that case, the judges snapped, it was up to the department to make repairs. The principle applied to all the creeks: if recovering the historic fishery meant doing restoration work on the streams themselves, so be it.
Implementation was now in Judge Finney's hands. He transmitted the appeal court's instructions to the water board, which added the specified language to the city's permits. In June of 1990, after lengthy hearings, Finney also set flow rules specifying the minimum amount of water to be released down each creek in each month of the year. His schedule approximately doubled the existing flow in Rush Creek and increased the puny allotment for Lee Vining Creek sevenfold. The authoritative fish-flow studies—the Rush Creek ones ordered by Judge Otis back in 1986, and others begun on its own initiative by the Department of Fish and Game—were still incomplete, so Finney's numbers were interim rules only. By themselves, these flows would guarantee about 60,000 acre-feet
of water per year for Mono Lake, enough to maintain the lake surface in a range between 6,368 and 6,375 feet.
Finney also instructed the Los Angeles Department of Water and Power, the Mono Lake Committee, the Audubon Society, CalTrout, and the Department of Fish and Game to sit down together and begin planning for stream restoration, beginning with Parker and Walker creeks.
When water and fish reappeared in Rush Creek, CalTrout and the Mono Lake Committee had emphasized how good the renewed fish habitat was. The committee newsletter once referred to lower Rush Creek as "a paradise for trout and anglers." The message seemed to be: just provide the right amount of water, and everything else will be fine.
But everything else was not fine. In fact, Rush Creek and Lee Vining Creek were in terrible shape. Decades of too little water, punctuated by occasional doses of far too much, had turned them into wrecks of the streams old-timers remembered.
Biologist Elden Vestal could testify to that. It was Vestal who, back in 1941, had first protested the shutting off of flows. Not long after Dahlgren began, the lawyers had sought him out. In September of 1986 Vestal had visited Rush Creek. "I wasn't prepared," he says, "for what I found. In all my years as a fisheries biologist I've never seen a scene that was so devastating. The terrible incision, the frightful effects of flooding, erosion. And I thought . . . it took thousands of years to build this habitat but just a short time in the life of man to destroy all this. I was a little choked."
When stream restoration was ordered, it suddenly became vital to determine what the pre-diversion conditions had been. The Department of Water and Power argued that no one could really say what the streams had been like before 1941. The recollections of old-timers, who were, after all, not trained observers, didn't count. Neither did the abundant but indirect evidence readable in the land.
It was then that Elden Vestal became the star witness. In depositions and testimony he spelled out what he knew of the creeks, and of Rush Creek in particular. Far from relying on memory alone, he had kept a garageful of detailed, week-by-week reports. (He apologized for having destroyed his daily records.) "It's all there in my notes," Vestal said. Recalling the scenes he remembered, he added, "Perhaps it will be like that again."
Parker and Walker Creeks
"Perhaps it will be like that again." The possibility was tested first at Parker and Walker creeks, the two small streams that come down from the mountains north of Rush Creek and join it on the lakeward side of U.S. 395. In their natural state these streams meandered down a vast, sloping meadow in narrow, sod-bound channels. When flows were high, they spilled over into parallel distributaries. (That water, sinking into the ground,
Image not available.
Ilene Mandelbaum joined the
Mono Lake Committee staff
in 1984, the year the court
fight over Rush Creek started;
the streams have been at the
center of her job ever since.
From 1990 to 1994 she
served on the contentious
Restoration Technical
Committee, the group in
charge of stream repairs.
(Photo by Gerda S. Mathan)
may have helped to feed the springs along the Rush Creek canyon wall below.) After white settlement, the meadow became a sheep pasture, the chief asset of the Cain Ranch. Irrigators spread water across the grass; after diversion began, Los Angeles, new owner of the ranch, continued to let some irrigation water pass the upstream diversion points. But the creeks, as such, disappeared.
Now it was time to bring them back. Noted restoration consultant Scott English was chosen to do the work; Audubon brought in a second consultant, Woody Trihey, who had helped them before Judge Finney; Peter Vorster and Scott Stine completed the initial team.
That summer the crews excavated the creeks, lifting off the turf that had formed in the dry decades. Ilene Mandelbaum of the Mono Lake Committee recalls the next step: "In places where the original stream channel was crisscrossed by a confusing network of man-made ditches, the work resembled an archeological dig. . . . Backhoe operators, guided by engineers, would dig down and carefully lift out large, intact chunks of sod. . . . Sure enough, underneath the old sod we would find the spawning gravel of theold stream bed."
Below Highway 395 on Parker Creek was another problem, the "Parker Plug." During the dry decades the California Department of Transportation had stored coarse construction gravel (cobble) on the site, shoving huge piles into the abandoned streambed. Now CalTrans crews worked for several weeks to remove some of this cobble and reestablish a channel.
Image not available.
The first water finds its way down the restored bed of Parker Creek.
(Photo by Ilene Mandelbaum, courtesy Mono Lake Committee)
On October 9, 1990, water was turned back into Parker Creek. The occasion was something of a festival. Children ran downstream beside the leading edge of the water. Young members of the Los Angeles Conservation Corps, who had helped with the construction, watched proudly. And Judge Finney looked on with visible satisfaction.
Ten days later Walker Creek was rewatered. Along both creeks, fences were built to keep livestock out. In the following spring, high flows ordered by the court would flush out additional silt and push the recovery process along. And in a year or two, people returning to Parker and Walker creeks would stand amazed. The scars of construction quickly vanished in the verdant landscape. To an untrained eye the streams looked as though they had never been altered: deep slots walled with turf, curving and doubling back on themselves, filled with bright water, colored stones, and, to the sharp eye, fish.
But Parker and Walker creeks were the easy cases. Here, a true, simple restoration—a putting back—was almost possible. The bigger creeks would be far bigger challenges.
On November 2, 1990, the parties agreed to undertake the restoration of Rush and Lee Vining creeks. An unwieldy two-level structure was built to manage the work. In overall charge was a misnamed Restoration Technical Committee—by nature, rather, a political body—with one seat each for the L.A. Department of Water and Power, the Mono Lake Committee, the Audubon Society, CalTrout, and the Department of Fish and Game. The Restoration Technical Committee (RTC) was to act only with unanimity; given even one dissent on any issue, that matter would be bucked up to Judge Finney. The actual work would be planned and performed by a planning team led by Woody Trihey. Trihey's expanded role came at the suggestion of the Department of Water and Power: despite his earlier connection with Audubon, Water and Power liked what it saw as his commonsensical, economical "fix-it" approach. Trihey was to take direction from the RTC but to submit his bills to the department.
If it sounds like a recipe for gridlock, it was.
A New Beginning
Meanwhile, back in Los Angeles, there was hope that the hostilities might be brought to an end before the legal process had run its course.
Early in 1990, Los Angeles Mayor Tom Bradley appointed two new members to the Board of Water and Power Commissioners. The first was Mike Gage, a former Northern California assemblyman, a whitewater rafter and guide who had recently served as one of Bradley's two deputy mayors. The second appointee was well-known southern California environmental activist Dorothy Green; she had founded the organization Heal the Bay to attack pollution from sewage outfalls and knew water issues from the other end of the pipe, so to speak. Introducing the new members, the Mono Lake Newsletter referred to them as "Dorothy" and "Mike."
In July, when the mayor named environmental attorney Mary Nichols to the board, the new outlook seemed to have a majority. The staff was changing to match. General Manager and Chief Engineer Norman Nichols bailed out upon the arrival of Mary Nichols (no kin by blood or attitude); water chief Duane Georgeson, the department's voice on Mono Lake for a decade, had already moved over to the Metropolitan Water District.
Mayor Bradley was trying, belatedly, to get control of a branch of government that had become an ever-increasing embarrassment to his administration. The constant bad news from the Mono Lake legal front was only one cause of the embarrassment, but it was a substantial one.
In September 1990, when the yearly cavalcade of Mono-bound bicyclists dipped their vials into the reflecting pool in front of the Water and Power building in Los Angeles, Mike Gage, now board president, was there to send them off. That year's bicycle marathon was billed as a "victory ride."
But it was too early for celebration—or perhaps it was too late. Behind the scenes, relations between the Mono Lake Committee and the new Water and Power commissioners had already begun to sour.
At this time, LeRoy Graymer's Mono Lake Group was trying to put together a package of federal legislation to help resolve the Mono issue, something similar to Isenberg's AB 444 on the state level. California Senator Wilson was interested in carrying such a bill, but this time the parties could not agree on its contents.
Meanwhile, the Department of Water and Power was mounting a sustained challenge to Judge Finney's lake-level injunction blocking diversion until the lake surface climbed well above 6,377 feet. Finney proposed to extend the injunction until the water board had ruled. Opposing this extension, the department requested an elaborate trial.
When Gage arrived in 1990, it appeared that this exercise might be avoided. It seemed that the Board of Water and Power Commissioners would agree to keep the lake above 6,377 feet on its own initiative, and in return the Mono Lake Committee would agree to let the formal injunction lapse. But the compromise foundered on misunderstandings, and the legal show went on.
Trial Run: The Preliminary Injunction Hearings
In the overall legal scheme of things, the hearings before Judge Finney in the summer of 1990 were actually fairly small potatoes. What was at stake, technically, was merely the extension of an existing preliminary injunction. But in truth the hearings were a major test of strength (and fund-raising ability), and a landmark on the march toward a decision.
For one thing, the cast of characters changed. Up to this point, Audubon had opposed Los Angeles alone, or in somewhat unstable coalition with CalTrout. Now others began to move. The U.S. Forest Service asked to join the case as an amicus curiae,
"friend of the court," in support of the 6,377-foot lake minimum (also called for in its Scenic Area management plan). Water and Power hotly objected, but Judge Finney allowed the Forest Service in.
Equally significant was the entry of the California State Lands Commission. This little-known board manages, among other miscellaneous properties, such submerged lands as the bed of Mono Lake. In the early 1980s, the commission had fought the federal government for control of land exposed by lake decline and had lost the bulk of the territory it claimed. Now it stood to lose additional acreage whenever the lake sank; it was unclear whether or not it would regain land when the lake rose. Lieutenant Governor Leo McCarthy, a member of the commission, tipped the balance for intervention in the present case. In this action, as in the earlier turf battle, the commission relied heavily on the findings of Scott Stine.
Suddenly Los Angeles found itself facing, not one or two opponents, but a government-environmentalist phalanx.
What followed was the longest, most expensive courtroom operation since the beginning of the struggle ten years earlier. There were dozens of witnesses, weeks of testimony, cartloads of exhibits. For the first time, actual evidence about the state of the lake was presented in court and subjected to cross-examination. The gull doctors testified, and disagreed in detail. Hydrologists argued about how far the lake might fall and about the state of the city's water supply. Other experts held forth on the needs of flies and shrimp, on recreation, on scenery. The dust problem was the subject of extensive debate that turned on highly technical points about particle size, arsenic levels, and the weather. In pushing to maintain the lake above 6,377 feet, Audubon relied heavily on the findings of the CORI report The Future of Mono Lake and on the National Forest Scenic Area Plan. Water and Power cited recent history to argue that letting the lake drop below 6,377 feet would do no lasting harm.
On April 17, 1991, Judge Finney made his decision: the lake-level injunction stood. In July, Judge Finney refused a request from the Department of Water and Power to reopen the matter yet again and ordered them to pay the latest batch of legal costs. According to the house organ Intake , the department's investment in the fight, since 1979, was now up to $12 million for outside lawyers and consultants alone.
Negotiations Break Down
Meanwhile, the AB 444 negotiations were floundering. Martha Davis and Mike Gage were the principals. It cannot be clear to any outsider what went on between them. What is certain is that they could not agree and that each came to regard the other as an impossible negotiation partner.
As a state legislator in the 1970s, Gage had felt a lot of sympathy for the Mono Lake Committee's opening position: "6,378' or Fight." In 1990 he still liked that position. He
believed that the lake should be maintained at levels high enough to protect Negit Island, even in drought—but not a foot higher. This stance, it should be noted, was considerably more generous than that held by department staff .
If Mike Gage's views hadn't changed in fifteen years, the Mono Lake Committee's certainly had. Ever since the days of the Interagency Task Force, the committee had been calling for a lake level of 6,388 feet; with each Los Angeles court defeat, this position was looking another notch less extreme.
The usual confusions of definition were at work here, of course. Gage's suggested lake level (officially 6,377 feet) was a floor; he proposed to limit diversions so that the lake would never sink below that level. The committee's 6,388 feet was the center of a range. The committee's plan would generally keep the lake six to eight feet higher than the one offered by Gage.
In an attempt to move matters along, the committee shifted its position—slightly. It called for a Mono Lake management level of 6,386 rather than 6,388 feet, combined with continued streamflows not less than those established by Judge Finney. With some water flowing into the lake every year, a smaller buffer was now required against drought.
The committee's offer was part of a new package called the Six Point Plan. Like the committee's old Wet Year/Dry Year Plan, this scheme contained some provisions meant to appeal to Los Angeles. Rather than halting diversions outright until the lake reached 6,386 feet, the plan would allow the city to divert 15,000 acre-feet a year during a transition period; after 6,386 feet was reached, it would allow some extra diversion during droughts, even if this caused the lake to sink again.
Gage made it clear that, to interest him, the committee would have to come down a good deal further.
Would a little more flexibility on both sides have produced a lake-level agreement? Perhaps. But Mono advocates, looking back, don't see a near miss in the events of 1990–91; they see a narrow escape. No possible agreement could have matched what was later gained for the lake. For Water and Power, on the other hand, any agreement—even simple acceptance of the Six Point Plan—would have been advantageous. The tide was running. Nobody knew with what force.
Gage next proposed setting the lake-level question aside but seeking state money for projects "which, individually, may not provide a permanent solution but would contribute toward a permanent protection for the Mono Lake ecosystem." Davis and the committee found this language uselessly vague. In the spring of 1991, the dispute hit the press and the honeymoon was officially over.
Discussions resumed early in 1992, driven by a political fact of life: the $60 million pot established by AB 444 would not be around forever. The state was heading into a streak of bad budget years, each worse than the last, and the unused Environmental Water Fund of AB 444 was a tempting target. Already a couple of million had been diverted to other purposes, and a bigger bite was looming.
The initiative in 1992 came from Mayor Bradley's office and from Water and Power commissioners Mary Nichols and Dorothy Green. Nichols thought she saw a way around the lake-level impasse. Why not leave that question open, as Gage had suggested, but add a guarantee that Gage had not suggested: a promise to credit any new water developed with state money to a sort of Mono Lake account? In other words, for each acre-foot of annual supply produced with the help of AB 444, the department would give up all claim to an acre-foot of water from the Mono Basin. In addition, Nichols offered a moratorium on diversions, to run until the final resolution of the case. Unlike Judge Finney's preliminary injunction, this freeze would remain in force no matter how high the lake might climb in the interim.
Draft agreement in hand, the negotiators went back to their respective boards. The Mono Lake Committee board, impressed by the moratorium offer, said yes; the Los Angeles Board of Water and Power Commissioners, on June 2, 1992, refused to back the moratorium. After an acrimonious follow-up meeting, negotiations ceased once again. Soon after, the legislature shifted another $12 million of AB 444 money to other purposes.
Federal Help and the Rise of Reclamation
Though Water and Power and the Mono Lake Committee hadn't managed to join forces in seeking federal help to replace Mono water, nothing prevented the committee from lobbying in that direction on its own. In the early 1990s, California Congressman George Miller and New Jersey Senator Bill Bradley were putting together a congressional coalition to reform the operation of various federal water projects (while launching several new ones). Their major and most controversial reform target was the Central Valley Project in California. But when the Reclamation Projects Authorization and Adjustment Act (HR 429) finally passed in September 1992, it included a federal counterpart to California's AB 444. The new law authorized the U.S. Bureau of Reclamation to pay one-quarter of the cost of some water recycling projects in southern California, which were "expected to offset water diversions from the environmentally sensitive Mono Lake Basin." The bill was tailored for two applicants: the Department of Water and Power, and the West Basin Municipal Water District, which serves eighteen cities in the South Bay region of Los Angeles County.
This sudden zeroing-in on reclamation as a way of stretching the water supply reflects a change of thinking. Over the years, various sources had been looked to as substitutes for eastern Sierra water. Water and Power, of course, had never ceased eyeing the Sacramento/San Joaquin Delta, making scary sucking sounds (take away Mono, and here we come!). Its critics sought answers that would harm neither the delta nor any other source region. Conservation—which might better be called simply efficiency—was always part of the formula. In the late 1980s, attention turned to a form of water marketing in which Los Angeles would pay for conservation measures in certain farm
districts and would receive the water the farmers could then spare. During the 1991 negotiations, a water market scheme had again been the talking point. It involved retiring from agriculture some lands in the Central Valley where the soil is tainted with toxic selenium—lands that should not, in fact, be farmed—and shifting that irrigation water to the southern city.
By 1992, however, attention had turned back to a more traditional idea whose hour seemed at last to have come. Over a period of years, the metropolitan region had been under increasing pressure to improve sewage treatment and reduce pollution of the nearby ocean; the effluent local plants produced was now approaching potable quality. Plans for wider use of this reclaimed water were maturing, both within the city limits of Los Angeles and, much more rapidly, in jurisdictions outside it. Though some of these plans would go ahead regardless, the state and federal subventions of AB 444 and HR 429 could be of critical help in the costly startup phase.
One local leader was the West Basin Municipal Water District. West Basin was about to begin building a major reclamation plant in El Segundo to produce 100,000 acre-feet of water a year, destined mainly for injection into the ground to form a barrier against encroaching seawater. That would be 100,000 acre-feet the district would no longer need to buy from the Metropolitan Water District, 100,000 acre-feet that would be available for someone else, perhaps for Los Angeles proper. In 1991, Martha Davis and district manager Rich Atwater got together to seek money for West Basin in the pending federal water bill.
Within Los Angeles, the comparable venture was the East San Fernando Valley Project. In that case, the city already had the reclaimed water. What it needed was the pipes to distribute it. Part of the supply would be used for irrigation and other nonpotable purposes; most of it would be allowed to percolate into groundwater basins, adding indirectly to the supply of drinking water. Total output was estimated at 35,000 acre-feet or more. If the Department of Water and Power could ever get together with the Mono Lake Committee on an application for AB 444 money from the state, East Valley would be the project to benefit; the federal bill was written to benefit it as well. Water and Power was slow to apply, but on a 1993 lobbying trip Davis took the liberty of soliciting a small grant for East Valley. It came through, and much more was to come.
And so it was that the Mono Lake campaign led to the state and federal funding of water reclamation projects on a scale never before seen in California or, indeed, anywhere in the United States.
The Other Mono Lake Committee
By this time the Mono Lake Committee had made itself a presence in local and statewide water policy debates that went well beyond its primary cause. You might say there was a second Mono Lake Committee: a low-budget think tank and advocate concerned above all with the water welfare of—Los Angeles.
That role came to public attention in 1988, when a lengthy drought was tightening
its hold. Dissatisfied with what it considered a perfunctory official water conservation campaign, the committee launched its own, livelier ads. For that purpose it joined forces with the anti-pollution group Heal the Bay. "What's the connection between Mono Lake and Santa Monica Bay?" the public service spots asked. "Give up? You are! L.A. takes water from Mono Lake, and pours pollution into Santa Monica Bay. Every drop you save can help the lake, and the bay, and save a bundle on your water bills."
Conservation efforts sputtered along in Los Angeles until 1990, when a mandatory rationing program produced a larger-than-expected drop in water usage. At that point an important, built-in drawback of successful water conservation became apparent. Because the fixed costs of running the system are spread over fewer gallons, there arises what seems a great injustice: consumers who cut their water use wind up paying more for each gallon they use. In the summer of 1991, per capita use actually sank 30 percent, and Water and Power, in the manner of water utilities everywhere, proposed a double-digit rate increase. The city council granted only a small increase, but even that caused great consumer anger.
In reaction, Mayor Bradley appointed a Blue Ribbon Committee to restudy water rates from scratch. Mono Lake Committee Associate Director Betsy Reifsnider took extensive part. In February 1993, following Blue Ribbon advice, the city adopted a two-bracket rate structure: users of small or moderate amounts of water would pay rather less per gallon than before and avoid the "conservation penalty"; heavy users would pay a markedly higher amount that reflected the cost of developing new supplies.
Reifsnider served also on a statewide Urban Water Conservation Council, a consortium of governments and conservation groups; in 1991, the council agreed on a list of modest water-saving measures called the Best Management Practices. The most significant "practice" was the subsidized installation of ultra-low-flush toilets. Together, the "practices" were projected to save southern Californians 700,000 acre-feet of water every year.
In July of 1992, after a wet winter, water rationing ended in Los Angeles. What happened then was unexpected and highly significant: people kept right on conserving. The individual "conservation effort," according to the computations of the Department of Water and Power, continued in the range of 15 to 25 percent. Total water use remained well below the peak levels reached in the 1980s. Conservation, once regarded as a short-term sacrifice, seemed on its way to becoming the norm. It was built into the city physically, in such forms as newfangled toilets, and built into citizen habits as well.
The Restoration Wars
Up in Lee Vining, the stream restoration work begun so auspiciously was bogging down.
It wasn't too bad in 1991. The new Restoration Technical Committee got started with one important, obvious, but not uncontroversial step: the exclusion of grazing sheep
Image not available.
Stream restoration expert Woody Trihey up to his
knees in Lee Vining Creek.
(Photo by Gerda S. Mathan)
from the streambanks. Though the riparian corridors had withstood quite a bit of livestock use before 1940 without widespread ill effects, they were far more fragile now; trampling by stock was hindering the regrowth of streambank vegetation. When attempts to control the animals failed, Water and Power agreed to lock them out entirely.
In 1992, after some trial runs on less damaged reaches of the streams, the team turned to the first of the really hard cases: Lee Vining Creek below U.S. 395 and the town of Lee Vining.
Lower Lee Vining Creek, we recall, dried up in the 1940s and lost most of its riparian forest to drought and fire. In the late 1960s, floods tore through, reaming out a simplified channel. The torrents also stripped off thousands of tons of fine sediment and carried it into the lake, leaving large areas of sterile cobble. The heavy-runoff years of the 1980s intensified the damage.
Now, the stream ran shallow, straight, and fast. There were few places for fish to escape the current that tended to sweep them into the lake, or for small fish to hide from predatory larger ones. There was little spawning gravel. There was almost no shade.
Tramping up and down this problematic landscape, the planning team saw several things to be done. They proposed to breach cobblebars and nudge some of the stream-water into certain subsidiary channels, now dry, that had retained their original narrow, deep form. With a little more hesitation, they proposed to reshape the ditchlike main channel itself by digging a series of pools and strategically placing some logs and stumps from the burned forest. Finally, they proposed to speed up the natural recovery of streambank vegetation by planting cottonwoods, willows, aspens, and Jeffrey pines.
These measures promised to be expensive, and in 1992 Water and Power began to balk. Challenged to make the case for their plan, Woody Trihey and company produced more studies, more documentation, at more expense. As disagreements multiplied in the Restoration Technical Committee, Judge Finney ordered transcripts kept to establish what had and had not been said, and lawyers for all sides began to hover, usually silent, in the background.
By mid-1992 the department had found another theme, besides expense, for its objections. It began to argue that most of this work was in fact a bad idea, that the best restoration was restoration unaided by human hands. The streams should be allowed to recover on their own. Intervention would only do harm.
Recovery Versus Restoration
Recovery. Restoration . In what might be called the ecosystem-repair business, these are terms with specific and differing meanings.
Recovery is something that just happens. The moment a landscape or natural system ceases to be disturbed, it starts repairing itself through the natural succession of plants. A place undergoing recovery will "green up," look better and better, more and more "natural," with time. Whether it will come to resemble what it was before it was disturbed depends on how large the disturbance was and on how much time has elapsed since then.
Restoration is something else. It means the return to a particular desired condition—in this case, something comparable to what was there in 1940. It implies human assistance. (Some object to the very idea, on the grounds that we can't know enough to do it right and had better not even try.)
Image not available.
The Los Angeles Conservation Corps came north to
work on Lee Vining Creek.
(Photo by Jane Dove Juneau for Mammoth Times)
With water back in the Mono Basin streams and cattle and sheep excluded from their banks, recovery, in the form of a lush band of waterside growth, was evident in many places. But was this automatic rebound sufficient to produce, in a reasonable time, something like the values present in the streams in 1940?
The department's consultants said yes. When the saplings now lining parts of the streambank became large trees and began to topple into the stream, pools would form behind the logs; the banks would narrow and steepen; water would presently find its own way back to the abandoned channels or would find new ones; and fish habitat (the legal object of this exercise) would be remade.
Trihey and most of his advisers were more pessimistic. Scott Stine compared the creeks to a patient with a badly broken leg: the bones will undoubtedly knit together, but if they are not set properly the victim may not walk again.
If no two of the doctors on the case prescribed exactly the same treatment, the consensus was for intervention—in some degree.
Water and Power countered that restoration work was actually holding back the natural recovery process. It complained, for instance, that rock dredged from the creek produced new cobblebars, slow to revegetate, and that heavy equipment crushed young plants. In a rather comical reversal of roles, the city now took a stance of exquisite sensitivity to the ecosystem.
Unresolved paradox: if nature could be counted on to repair the catastrophic damage done to the streambed by decades of desiccation, erosion, and heavy grazing, why could she not be trusted to heal any scratches made by Woody Trihey and Scott English in a few passes with a backhoe?
Judge Finney did not go in much for these philosophical doubts. Though he accepted some of the department's proposed changes of plan, he forced most of the Lee Vining Creek work to proceed. Then, when the promised department work crews showed up, they stayed only a few hours a day. "That's not going to cut it," Finney warned. Finally, in the late summer of 1992, after twenty-two days in court, the bulk of the work was done.
Lower Rush Creek, with its great gash of incision and its dried-up springs, was next on the agenda. Plainly the Restoration Technical Committee as originally designed was not equipped to deal with it. In June of 1993 Judge Finney reorganized the group, expanding it to include three scientists affiliated with none of the parties. He also ended the requirement of unanimity: it would now take three votes of eight, not one of five, to block a majority decision.
The new format looked like an improvement, but it might prove short-lived. For Finney's Restoration Technical Committee, in either version, was an interim body only, a stopgap. The real word on restoration, both its ends and its means, was expected, in due course, from the State Water Resources Control Board.
Dusty Roads
Elsewhere, wheels had been turning, ever so slowly, on the dust issue.
The air pollution exemption the Los Angeles Department of Water and Power won in Sacramento in 1983 did not bind the federal government. In 1987, the Environmental Protection Agency (EPA) set a national standard for "fugitive dust," focusing on those particles, 10 micrometers across or smaller, that pass most readily into the lungs. (Pollen grains, by contrast, are 20 to 100 microns.) Like the more general Total Suspended Particulates standard heretofore used by the state, the new PM-10 standard was surpassed in the Mono Basin several days a year. Nonetheless, EPA proposed to label the Mono Basin a "clean air district." In June of 1988, Congressman Richard Lehman prevailed on the agency to give the area instead "unclassified" status. This meant that monitoring would continue and that correction of some sort would eventually be required.
Here the Audubon side almost tripped over its own feet. For years its lawyers had actually argued that the federal Clean Air Act did not apply to Mono Lake dust. Why? Because if the act did cover the case, Audubon couldn't sue about dust under the general doctrine of interstate nuisance; instead, the Clean Air Act procedures would take over. And if it couldn't sue under nuisance, it would lose its foothold in the court of its favored jurist, Federal District Judge Lawrence Karlton.
Image not available.
Congressman Richard Lehman pushed legislation to
create the Mono Basin National Forest Scenic Area
and later made sure that Mono dust was covered by
federal air pollution laws.
(Photo courtesy Mono Lake Committee)
Then, in October of 1988, the federal Ninth Circuit Court of Appeals dismissed the nuisance suit. But the justices also took occasion to repeat and endorse the old Audubon contention that the Clean Air Act did not apply. In short, the court disclaimed any federal role at all in confronting the problem of alkali dust.
The Morrison & Foerster legal team had other matters on its mind and would have let this language, potentially quite damaging, pass. However, a law professor in Arizona, one Joseph Feller, saw the draft ruling and took alarm at this undermining of federal pollution-control powers. A rare thing happened: Feller wrote a letter to the circuit court stating his disagreement, and the judges revised their decision to remove the prejudicial language.
Congress, meanwhile, was rewriting that Clean Air Act. The Environmental Protection Agency proposed language exempting natural sources from the controls. Eastern Sierra interests wanted it established that Owens and Mono dust storms were not "natural." They got the language they sought—not, to be sure, in the final law itself, but in the reports of the relevant committees, the next best thing. The House Committee on Energy and Commerce, for instance, remarked, "The term anthropogenic source indudes sources that are indirectly created by human activity as well as those that are the
direct result of such activity. An example of such a source [is] the dust storms that are generated from dry lake beds at Owens and Mono Lakes in California." The lingering question—were the storms just "natural"?—was officially resolved.
The Great Basin Unified Air Pollution Control District, meanwhile, was monitoring away. Finally it felt sure it had enough data to prove the violations beyond cavil, and it so informed the California Air Resources Board. In August 1991, the Air Resources Board asked the EPA to move the basin from its "unclassified" list to the status of "moderate nonattainment."
Once such a declaration of nonattainment becomes official the state must take corrective steps, and on a very firm schedule. If progress is insufficient in five years, the violation is reclassified from "moderate" to "serious" and pressure increases. If the problem still exists in fifteen years, EPA can step in and impose a solution of its own.
The Department of Water and Power naturally sought to delay the onset of this timetable as long as possible. But by the end of 1992 it was clear that the enforcement machinery would soon be in motion. What enforcement might mean in terms of a required lake level was still an open question.