10—
The Clock Turned Back
Quite long while this talk mixed up—only today decide it.
Paiute leader on the resolution of a tribaldispute, 1901, reported by W. A. Chalfant in The Story of Inyo
Late in may of 1993, after 43,000 hours of preparation, the document everyone had been waiting for landed with a thump on desks up and down the state of California. Its full title was Draft Environmental Impact Report for the Review of the Mono Basin Water Rights of the City of Los Angeles (DEIR). Its three volumes and twenty-eight auxiliary reports weighed in at twenty-six pounds. It had cost over three million dollars of Water and Power's money to prepare. And its contents, on several points, were a mighty surprise.
Analyzing a range of lake-level alternatives, the DEIR found the best one to be what it called 6,383.5 feet. Under this option the lake surface would actually fluctuate between 6,378 and 6,389 feet, depending on weather, touching the lower level only during extreme drought. Los Angeles's water exports would be cut to approximately half of the long-term average, to a mean rate of 44,000 acre-feet a year. This alternative closely matched what the Forest Service had recommended in its Scenic Area Plan. Allowing for the usual complexities, it was also quite close to the position of the Mono Lake Committee.
This 6,383.5-foot alternative was called "environmentally superior" based on a comparison with the situation in 1989. But the staff had also gauged the choices against another baseline: the lake as it was in 1940. Against this background, they concluded, the lake level that appeared superior was half a dozen feet higher: 6,390 feet. Under this alternative, the lake surface would rise as high as 6,395 feet and, in extreme drought,
sink only as low as 6,383 feet. Water exports would be reduced to some 30,000 acre-feet a year.
Why did the choice favored depend on the year chosen for comparison? Chiefly because of the tufa displays exposed since the lake began to fall. If the pre-diversion lake is the basis of comparison, these groves don't count; if the lowered lake is taken as the basis, they count a great deal. The authors of the report concluded that the 6,383.5-foot plan would preserve these newly revealed towers and sand tufa displays; higher levels would topple, erode, or submerge them.
But the 6,390-foot alternative had a powerful advantage of its own. According to the air quality modelers at Jones & Stokes, only a 6,390-foot lake would submerge enough of the alkali rim to put an effective end to dust storms. This was a stunning development. Until now, it had been thought that a level as low as 6,380 feet might suffice.
In other respects the two alternatives seemed about equally attractive. Either would protect Negit Island and the Negit islets (but not the Paoha islets, which would be lost to wave erosion). Under the 6,383.5-foot plan, many pumice boulders and other hard substrates would be just shallowly submerged, providing optimum habitat for alkali fly larvae and pupae; this level, the report concluded, was best for Ephydra hians . But the lower salinities under the 6,390-foot plan would be better for Artemia monica , the unique local brine shrimp species. An attempt to gauge public preferences found the two options rather evenly matched.
The DEIR disposed of several traditional objections to a high lake level. For example, the National Academy of Sciences team had worried that a high lake, by flooding the alkali ring, might destroy nesting habitat for the snowy plover, but later research had shown that the plover would find plenty of nesting spots almost regardless of lake level.
There had also been worries about the other attractions along the path of Mono water: Grant Lake, the upper Owens River, Crowley Lake, and more distant reaches of the Owens. Would a reduced input of Mono water degrade these places? The DEIR found these effects likely to be minor, easily offset by careful management. As for the Owens Valley, the city's groundwater extraction there was now governed by agreement with Inyo County; no decision concerning Mono would cause pumping to increase.
The late chapters of the DEIR turned to the price: what would a higher lake cost Los Angeles? Here came conclusions unwelcome to the Department of Water and Power. No matter what lake level was chosen, the report claimed, reclamarion and conservation could make up for any Mono water lost. Even if Mono Basin diversions were entirely cut off, the shortfall could readily be overcome. As for the energy produced by Mono water on its travels southward, there was hardly any impact to be overcome. Mono water passing through the aqueduct power plants accounted for less than 1 percent of the department's generating capacity—the smallest of small change.
A Change of Dreams
In the weeks after the environmental report appeared the Mono Lake Committee found itself in a most peculiar position. The new report, with its split endorsement of two generous lake levels, left the committee's thinking far behind. In its Six Point Plan of 1991, the committee had chosen a target level of 6,386 feet. As the Mono Lake Newsletter editorialized, "DWP rejected that level as much too high, but new data suggests that it may be much too low."
Back in the 1970s, when the lake had appeared doomed to a long and finally fatal decline, merely to stabilize it was goal enough. "Save Mono Lake!" people cried, and they meant, "Save What Is Left!" Researchers did not spend much time estimating what might have already been lost; indeed, they barely guessed what had been lost. Most of their study and debate concerned what was still to lose.
When Congress launched the National Academy of Sciences study in 1984, it confirmed this focus. The authorizing legislation spoke of maintaining current wildlife and studying effects of further declining lake levels only. Though the Academy report of 1987 spent a few pages looking at higher lake levels, for the most part it fixed its gaze resolutely downward. The state-funded Community and Organization Research Institute "Blue Ribbon Panel" paper, which appeared a few months later, shared that emphasis.
These studies agreed that Mono Lake at 6,376, 6,374, or even perhaps 6,372 feet above sea level was not about to enter ecological collapse. If the purpose was literally to "save" Mono Lake—to continue to have approximately what was there in the days of the 1976 ecological study—a fairly low water level could be tolerated. Only the insurance factor required a decision: how much higher should the lake be kept in normal times to avoid dropping below some critical point in dry cycles?
In the late 1980s the discussion gradually shifted. People were becoming more keenly aware of the richness present at the lake before diversion. They were starting to realize that Mono Lake circa 1976 had not been, after all, an Eden, but a Paradise partially lost.
In 1989 the Mono Lake Newsletter ran a feature on historic conditions. At that point the picture was painted only for contrast value, to make the committee's actual position seem modest: "We will never swim in Paoha Island's Heart Lake, witness a brine fly band six feet wide, or view flocks of ducks darkening Mono's shores." But even to say this was to invite the question Elden Vestal posed in a letter to Scott Stine: Why not?
The stream restoration projects encouraged this subtle change of thinking. For the creeks, at least, the game was now to reimagine and partially to reconstruct an old reality.
Yet until the DEIR came out these ideas had not come sharply into focus. Now that the report had broken the taboo against considering high lake levels, the parties opposed to the Los Angeles position had some fresh thinking to do—in a hurry.
In July of 1993, Patrick Flinn of Morrison & Foerster invited representatives of several parties to a meeting in Lee Vining, together with such scientists as David Herbst, Dave
Shuford, Scott Stine, and air researcher Thomas Cahill. It was a day of lively debate, with many positions argued. At the end of the session, the key question was not whether sights should be raised to 6,390 feet. The question was whether 6,390 feet was high enough.
6,390 Feet — or Higher?
There were really just two powerful arguments in favor of lake levels lower than 6,390 feet. David Herbst took aim at one of them, Scott Stine at the other.
Herbst reported on his latest fly research, not fully reflected in the DEIR. It was now clear, he stated, that the 6,390-foot lake level was preferable for alkali flies as well as for brine shrimp. The lower salinity helped the flies much more than the partial loss of shallow-water substrate harmed them.
Scott Stine discussed tufa effects. The DEIR had found that the 6,383.5-foot alternative, and no higher alternative, would preserve the tufa displays. Though this conclusion was based largely on Stine's background work, he felt that the report had drawn the wrong conclusions.
The waves and longshore currents of a rising lake can indeed cause tufas to fall. Contrary to what you might think, it is not the impact of waves against the flanks of the towers that does the harm; the structures are neither notched at waterline nor knocked over. Rather, the damage comes when waves lap just at the base of the towers, cutting away at the sediments in which they are rooted. During the lake rise of 1982—86, a large number of slender towers were toppled in this way. However, Stine argued, the DEIR had erred in concluding that the 6,383.5-foot lake management plan would avoid this type of damage. Even under that plan the lake would rise high enough during wet periods to undermine the more vulnerable towers.
Wholesale destruction, fortunately, is not in the cards. The most massive and complex architectures are least vulnerable; it is the free-standing, small-diameter tower that falls, And it probably falls at South Tufa. The South Tufa structures, Stine believes, were built over a few decades at the start of the twentieth century. Sediment immediately began to accumulate around their bases, a process that would eventually have anchored and protected the towers—but the falling lake after 1940 exposed them before this reinforcement had progressed very far.
What about sand tufa? Here Stine corrected an error of his own. He had believed, and so had advised the water board, that the 6,383.5-foot option would keep the water's edge away from those fragile structures. On reexamination, he knew better. This lake management alternative, like all the others under study, represented a range of water levels; at the first high stand under the "6,383.5-foot" plan, the present sand tufa displays would be destroyed. As waves cut new embankments, however, other sand tufas would appear, not free-standing and castle-like, but exposed in intricate cross-section, like fossils.
There seemed no reason left for preferring 6,383.5 to 6,390 feet.
Image not available.
The north shore in the 1930s, a tufa grove now high and dry. If the lake surface
reached 6,40s feet above sea level, these towers would once more stand on the
shore.
(Photo by Brett Weston)
What, then, about still higher levels?
When its surface stood higher than about 6,402 feet above the level of the sea, Mono Lake had sandy beaches instead of an alkali rim. It had expansive marshes at the creek mouths and extensive lagoons on the northern shore. It had a million migratory ducks. Much of this richness, Stine maintained, would come back of itself if the lake rose far enough. If the idea was restoration, he argued in Lee Vining, the target lake level should be a median of 6,405 feet.
Again the question of the tufa arises. A lake above 6,400 feet would submerge South Tufa and much of Lee Vining Tufa, respectively the best-known and largest stands. A submerged tufa tower is not destroyed—indeed, it is better preserved than one exposed
to the air—but of course it is lost to view. Unacceptable scenic losses? Stine felt the answer was no. Other displays would replace the hidden ones. After all, early visitors who saw the lake at high levels had marveled at the tufa groves. They were simply different tufa groves. With the lake at 6,405 feet, tufa on the north side, now well back from the shore and almost unvisited, would stand at the water's edge. There would be compensation, if not perhaps an even trade.
Stine made a pretty impressive case. Yet the 6,405-foot plan was not one that all could embrace. The drowning of South Tufa seemed a heavy price, and the plan would reduce Los Angeles's water diversions to a mere 20 percent of the historic average, and even less, while the lake was rising. The proposal was, depending on your viewpoint, bold—or overbold.
In the weeks after the Lee Vining conference, the Mono Lake Committee debated within itself whether or not to hang its hat on 6,405 feet, breaking ranks with allies who were just getting used to 6,390 feet. At last the board agreed on a compromise formula: "6,390' or Higher."
The Department of Water and Power Replies
The DEIR presented the Los Angeles Department of Water and Power with no such pleasant dilemmas.
In June, at a meeting of the City Council's Commerce, Energy, and Natural Resources Committee, chairperson Ruth Galanter asked plaintively, "Why are we still litigating this? I would much rather see us spend ratepayers' money to put in the pipes so we can use reclaimed water than to spend it on more lawyers' time." Water and Power's Mitchell Kodama and department legal advisers repeated old arguments about expense: in the very long term, the cost of replacing Mono water would reach two billion dollars. As for the length of the battle, water rights cases always run long. "This case is still a teenager," an attorney said. Galanter asked if the council could see the department's comments before they were filed with the water board. The response was a courteous No.
So, while its opponents debated whether 6,390 feet was high enough, Water and Power prepared once more to argue that an average level in the 6,370s would suffice to "save Mono Lake." Its Mono Lake Management Plan , published later that summer as a handsome booklet, proposed to keep the lake generally fluctuating between 6,374.6 and 6,385.3 feet, with the mean at 6,377.7. In a drought of six years or longer, it could dip lower.
The department's plan aimed to maintain the status quo, to keep the lake fluctuating within the range of recent experience. This, they argued, was the safe and sane solution. They pointed out quite correctly that the lake in this state was appreciated by millions. On the low end, the plan purported to protect Twain and Java islets and to keep the
water level above the "nick point," the change in bottom topography below which, it was now agreed, catastrophic erosion would be triggered. On the upper end, the lake would allegedly stay low enough to spare South Tufa and leave intact the Paoha islets, the new gull habitats. (These promises did not stand up to analysis: the predicted lake fluctuations would actually destroy the Paoha islets, topple tufa towers, and let coyotes invade Twain.)
For the larger streams, the department offered flows a bit below those set in 1990 by Judge Finney and far below the emerging recommendations of the Department of Fish and Game. Parker and Walker creeks, however, would be unhitched from the system and allowed to carry whatever water nature provided year by year. Active restoration work on all the streams would be abandoned, or at least deferred.
The Department Stands Alone
In the five-month period between the appearance of the DEIR and the beginning of the water board hearings, the parties scrambled to buttress and present their cases. Huge documents were prepared on all sides. Around the offices of Morrison & Foerster the joke ran, "Save the lake, kill a tree."
There also was a scramble to rally public support and, behind the scenes, to gather institutional allies. The latter process, like the first, was very one-sided. The Department of Water and Power had long since lost the public opinion war, and its support in governmental circles had lately been waning as well. Now it saw the powers lining up, one after another, in support of a lake level of 6,390 feet or higher.
On July 7, 1993, the federal Environmental Protection Agency at last proposed listing the Mono Basin for nonattainment of air quality standards under the Clean Air Act. This was one short step from the actual action (which would occur at the following New Year). EPA had not planned to appear at the upcoming hearings, but when Water and Power attempted to exclude the issue from discussion in this forum the agency changed its mind. On July 14, the Great Basin Unified Air Pollution Control District became the first party to endorse a high lake level, raising the bidding to 6,392 feet. The district, running a different computer model from the one used by Jones & Stokes, had arrived at all but identical conclusions about dust.
The Forest Service weighed in. Though it had earlier called for a lake range from 6,377 to 6,390 feet, it now joined the chorus calling for 6,390 feet. The State Lands Commission and the Department of Parks and Recreation, also responsible for Mono lands, did the same.
The federal Fish and Wildlife Service announced that selection of any level lower than 6,390 feet would cause it to seek listing of the brine shrimp Artemia monica as a threatened species.
The Department of Fish and Game put the finishing touches on its streamflow rec-
ommendations. It proposed flows in the creeks high enough, by themselves, to raise the lake to about 6,390 feet over a long period of time. But this normally cautious bureaucracy went further. In hopes of bringing back the ducks, it flatly endorsed a lake level of 6,405 feet.
The most damaging shift, perhaps, was that of Water and Power's long-standing ally, the Metropolitan Water District of Southern California. The Met, which distributes water from the Colorado Aqueduct and the State Water Project, is Water and Power's fallback source, the spigot from which, it had long been argued, replacement water for Mono must necessarily come. In 1990, Metropolitan Water District General Manager Carl Boronkay had warned, "Increasing demands on Metropolitan caused by reduction of the Mono Basin supply could exacerbate . . . shortages in other areas of California."
But early in 1993 Boronkay was replaced by John "Woody" Wodraska, who saw the water situation in less hackneyed terms. A sharp internal struggle ensued. On the losing end were Duane Georgeson, who in 1990 had moved to the Met from the Department of Water and Power, and Mike Gage, who had also left Water and Power and was now president of the Metropolitan Water District board. So narrow was the balance that the Met issued two statements: the first, its comments on the DEIR, supported Water and Power; the second, its prepared testimony for the water board, was neutral.
In filing the Aitken condemnation case, back in the 1930s, the department had asserted its rights "as against the defendants and each of them, and against all the world." That was merely the ripsnorting rhetoric of normal legal combat. Now, though, it came to seem prescient: Water and Power did, indeed, stand against "all the world."
The Mono Lake Committee, meanwhile, was seeking support from the very top—Republican Governor Pete Wilson. As a senator, Wilson had more than once been a key voice for Mono; as governor, he had suffered a series of embarrassments on water policy issues and could use a success before his reelection bid in 1994. And though the water establishment as a whole was still a force to be reckoned with in California politics, the Department of Water and Power itself was now so isolated that its protestations could safely be ignored.
The Show Begins
In the fall of 1993 the water board held hearings of two kinds: three days of public sound-off sessions, simply to gather statements of opinion, and what were projected to be twenty-one days of formal evidentiary hearings.
It had been several years since the Mono Lake Committee had last called on members and supporters to speak out for the cause, for the controversy had been proceeding in the courts and in technical study groups. Now that pent-up support could be expressed in a way that really mattered. Some four thousand letters, overwhelmingly in support of high lake levels, poured in to the water board. At the public hearing in Los Angeles on
Image not available.
Marc Del Piero of the State
Water Resources Control
Board. In 1993 and 1994,
he chaired forty-six days of
hearings; more often than
not he was the sole board
member present
(Photo by Gerda S. Mathan)
October 4, all day and through the evening voices spoke the mantra "6,390' or higher." A number of people underlined the "higher." The record shows only three dissents. And it was at this meeting that the governor's representative, California Environmental Protection Agency representative James M. Strock, gave the word insiders had been expecting: Wilson gave his weighty endorsement to 6,390 feet. At sessions in Mammoth Lakes and Sacramento, later in the month, the pro-Mono avalanche continued.
On October 20, 1993, in the plush auditorium at the Resources Building in Sacramento, the State Water Resources Control Board opened its formal evidentiary hearings on the Mono Basin issues. The event had a solemn feel. All the elaborate legal actions up to this point—all the multitudinous courtroom events since 1979—had been in the nature of skirmishes. Only now were the issues truly coming to trial.
In opening statements, MoFo attorney Bruce Dodge could not resist drawing the contrast between these last days and the first. At the beginning, Audubon and the Mono Lake Committee had faced a Department of Water and Power secure in its possessions, supported by the entire water industry and by the state government. Now, of fourteen parties represented, eleven were actually inimical to the department. Technically, each of these parties was entitled to the same amount of time; however, hearing officer Marc Del Piero, recognizing the disadvantage under which the department now labored, would take pains to allow it the fullest presentation of its case.
That case was a pitch for keeping things as they were. The situation that had existed at the lake since 1976 and in the streams since 1984, Water and Power witnesses argued, was quite all right. Higher lake levels would harm tufa. Historic conditions could not be assessed accurately, but, so far as they could be judged, they had not been nearly as good as old-timers remembered. Conservation and reclamation efforts in Los Angeles, already under way, were needed to supply the needs of future growth and should not be
counted on to replace Mono water. Replacement water would have to come, ultimately, from the Sacramento/San Joaquin Delta—and it might not be available at all. Responding to criticisms of its lake management plan, the department offered a revision purporting to hold the lake surface within a narrower range, as being better for both tufa and gulls.
Audubon and the Mono Lake Committee urged that the lake be raised to 6,390 feet or, better, to 6,405 feet. In order to meet air quality standards and to minimize the toppling of tufa, the lake should be filled as rapidly as possible, especially in the early years.
CalTrout's main concern was to support the generous streamflow recommendations of the Department of Fish and Game. Counsel Richard Roos-Collins defended the usefulness of historic accounts and sought to show that in the old days the Mono Basin creeks had been not just typical eastern Sierra fishing streams but superior ones. Putting aside some earlier doubts, CalTrout also endorsed an active restoration program on all the creeks.
The Department of Fish and Game made its own lengthy presentation, centering not only on fish but also on ducks. Among the department's witnesses was habitat restoration expert Frederic Reid of Ducks Unlimited; this national organization had been taking an increasing interest in the Mono Basin.
Some key questions were matters of law, not fact. For instance, what did the State Supreme Court mean when it said that public trust values must be protected "as far as feasible"? Los Angeles wanted to interpret "feasible" to mean "reasonable" and "to the minimum necessary degree." But Audubon read the word to mean, literally, "capable of being done." (On this count Los Angeles would prevail.)
On one legal point there was no disagreement. It was clear to all parties that the legally required flows for fish would be set first, and only after that did the public trust "balancing" begin. For this reason, many highly technical days were spent justifying low fish flows, or high ones.
Most of all, the proceedings were one long battle of experts. Some days were fourteen hours long. It was heavy going at times, but there were lively moments, as when the three Davids—fly researcher Herbst, ornithologist Shuford, and Winkler, the gull expert and Mono Lake Committee pioneer—appeared on the same panel. Unfortunately, Winkler never appeared jointly with Joseph R. Jehl, Jr., his long-time sparring partner in the debate over the status of Larus californicus .
Often the experts were not so much disagreeing as talking past each other. Water and Power's witnesses insisted that a moderately low lake level was not too bad; its opponents, that a high lake level would be much better. Both positions might be true. Limnologist John Melack, for instance, said that a lake in the 6,370s was "a functioning ecosystem" (what ecosystem is not?) and that it was "healthy" and "vibrant." Yet a higher lake would be healthier and more vibrant still. Melack declined to speculate on levels above 6,381 feet, let alone above 6,400 feet: "That would be a different lake."
Image not available.
Tom Birmingham, counsel for the Department of Water
and Power, and Assistant City Attorney Ken Downey
(right). Of all the lawyers that have worked on the case,
only Downey and Bruce Dodge remember the very
beginning.
(Photo by Gerda S. Mathan)
Air pollution was a more dangerous area for the department. One day in November, Water and Power counsel Tom Birmingham was trying to get a witness from the Environmental Protection Agency to agree that air quality problems in the Mono Basin were not bad enough to warrant expensive correction. Patrick Flinn took the occasion to read into the record some language that seemed almost fatal to the department's cause. In 1990, during the Clean Air Act debate, congressional committees had explicitly observed that eastern Sierra dust storms were "anthropogenic" and subject to the law. Because these words did not appear in the legislation itself but only in committee reports, they had apparently escaped the notice of Water and Power. Birmingham, in any case, had no response.
The next day, Flinn pinned down a public health witness for the department. Reading a graphic account of a dust storm—"It hurts to breathe"—Flinn more or less dared the hapless expert to deny that this sounded like a threat to health. Faced with a choice between conceding the point and sounding heartless, the witness chose to concede.
Twenty-one days, the board had said. Not half enough. As the testimony trundled on toward Christmas, with no end in sight, a curious thing happened: the contending lawyers and witnesses, board staffers and onlookers, began to form a community, a sort of village. The confrontation came to have its own history, its notable characters, its running jokes. Peter Vorster became known for his habit of passing suggested questions
Image not available.
The Mono Lake brain trust at the water board hearings. Left to right: Scott
Stine, David Shuford, David Winkler, Bruce Dodge, Peter Vorster, Patrick
Flinn. Water and Power attorney Janet Goldsmith (right) looks on.
(Photo by Gerda S. Mathan)
to any attorney who would take them. David Herbst drew laughter, and a reprimand from Del Piero, by demanding of Water and Power's decorous Adolph Moskovitz, "Did you understand what I just told you, though?" The most spectacular attorney was Bruce Dodge, tall, bow-tied, disapproving, bending dangerously over the lectern or pacing in the background, wincing at the ignorance of the world. And beside him was his colleague Patrick Flinn, bouncing up and down at seven in the evening after a long day, trying to get an economic consultant to concede a minor point obvious to all.
The 444 Breakthrough
In Los Angeles, 1993 had been a year of city government change. In June, after twenty years of Bradley administrations, Republican Richard Riordan became mayor. Riordan, a businessman not known as an environmentalist, brought to the job an executive's virtues: dislike of waste and unresolved conflict, along with an eye to the budget.
Assemblymen Richard Katz and Phillip Isenberg both wrote to the new mayor, reminding him of the $36 million that remained in the AB 444 fund. Mono Lake Committee board members Ed Manning and Tom Soto followed up. Deputy Mayor Michael
Image not available.
Richard Katz, assemblyman for
Van Nuys, a Mono supporter
and sponsor of many bills for
water law reform.
(Photo by Gerda S. Mathan)
Keeley got the parties together again and tried to broker a solution that would include a lake level, perhaps one as high as 6,390 feet. In the weeks before the water board hearings began, rumors flew that a city spokesman might announce an agreement on the opening day. But no agreement was reached.
At this point Martha Davis made a suggestion to councilmember Ruth Galanter: why not go back to the formula developed by Mary Nichols in 1992? Under that plan, the city would renounce an amount of Mono Basin water equal to the quantity developed with state money. Galanter now took this idea to Department of Water and Power General Manager Daniel Waters. Waters agreed in principle, but expressed doubt that the Mono Lake Committee would! It remained to turn all this agreement-in-principle into agreement-in-fact. Galanter shuttled back and forth with drafts of language until a text was arrived at that satisfied both sides.
On December 13, 1993, in crowded press conferences in Los Angeles and Sacramento, the Department of Water and Power and the Mono Lake Committee proclaimed their intent to apply together for the state money. Most of the $36 million would go to the East Valley water reclamation project, with smaller amounts to other reclamation and conservation efforts. In exchange, Water and Power would abandon its claim to at least 41,000 feet per year of Mono Basin water.
It was a jovial moment. The participants, including Mayor Riordan, Governor Wilson, and assorted legislators, passed Mono Lake calendars around, signing them like yearbooks. But the announcement proved to be another beginning, not an end. The process of turning agreement into finished application took months. Obstacles were encountered in Sacramento. The legislature had been shifting the unclaimed Environ-
Image not available.
Announcing the agreement to substitute water reclamation for Mono Basin
water. Speaking, Los Angeles Mayor Richard Riordan. At his left: Los
Angeles City Councilman Nate Holden; City Council President John
Ferraro; California Governor Pete Wilson; Water and Power General
Manager Dan Waters; Dennis Tito, president of the Board of Water and
Power Commissioners; Councilman Zev Yaroslavsky. At his right
(left to right): Mono Lake Committee board member Tom Soto;
Assemblyman Richard Katz; Mono Lake Committee Executive Director
Martha Davis; State Senator Tim Leslie; Councilwoman Ruth Galanter;
Marc Del Piero of the State Water Resources Control Board; Edith
and Mortimer Gaines (parents of David).
(Photo courtesy Councilwoman Ruth Galanter)
mental Water Fund, bit by bit, to the Department of Water Resources, which had grown accustomed to this income stream and wanted the AB 444 money extracted from some other budgetary pocket. Jim Wickser, head of water operations at Water and Power, made a small bet with Ruth Galanter: if the funds should ever materialize, dinner would be on him. But Assemblyman Richard Katz and State Senator Tim Leslie (the latter representing Mono County) successfully defended the original arrangement. In September, Governor Wilson signed off on the first of four $9 million installments.
Meanwhile, the revolution in the Los Angeles city government rolled on. In March, Daniel Waters, general manager and chief engineer, retired and was replaced by a care-
taker. In August, Mayor Riordan announced the appointment of his chief of staff, Bill McCarley, to the top spot. For the first time since its beginning, a nonengineer was running the Los Angeles Department of Water and Power. And for the first time, all the people in ultimate charge of the department were known to favor a rapid settlement at Mono Lake.
But that is getting ahead of the story.
The Water Board Decision
On the morning of February 18, 1994, CalTrout lawyer Richard Roos-Collins walked into the water board hearing room wearing a necktie with a picture of a trout. "This," he said, "is what we expect to see in the Mono Basin creeks." Water and Power's Tom Birmingham shot back, "Sure. A long, skinny fish." It was day forty-six, the last of the water board hearings. By now the transcripts ran to 30,000 pages.
As some last repeat witnesses re-turned already well-tilled ground, cameras flashed. Then came the final arguments, followed by a round of mutual compliments and almost regretful farewells.
Closing briefs, reply briefs, rebuttal briefs flew back and forth for another month or two. There was even something called a surrebuttal brief. The experts twiddled with their computer models. And, well out of the public view, the final analysis began. Insiders say that the lake level choice was never deeply in doubt, but other elements of the decision—streamflows and restoration requirements, in particular—were hotly contested among the water board members and staff.
On September 16, 1994, the State Water Resources Control Board published the final version of its Environmental Impact Report. The new plan actually went somewhat beyond the old 6,390-foot alternative. In order to eliminate the dust pollution problem, it would keep another foot or two of water in the lake most of the time. It also set streamflows—somewhat lower, especially in Rush Creek, than the Department of Fish and Game had recommended. It instructed Water and Power to prepare and execute, under board supervision, a plan for continued stream restoration. It added a new restoration mandate: Water and Power must prepare a parallel plan to restore duck habitat, to whatever degree the selected lake level would permit. The plan also placed an upper limit on discharge from the Mono Craters tunnel into the upper Owens River, to stem erosion damage downstream, and it called for a Grant Lake reservoir operations plan to protect recreation values there in light of changing water operations.
In order to get the lake up to the target level, Water and Power could make no diversions until the lake reached 6,377 feet; could take only 4,500 acre-feet a year of diversions until the level was 6,390 feet; and could then divert 16,000 feet a year until the lake reached 6,391 feet. At higher levels, all water in excess of the fish flows (always required) could be diverted. This would yield an average of 30,800 acre-feet a year. Should
Image not available.
Bruce Dodge, lead counsel
in the Audubon/Mono Lake
Committee suits against Los
Angeles Water and Power.
(Photo by Gerda S. Mathan)
drought drive the lake down (as from time to time it will), permitted diversions would shrink; at 6,388 feet they would cease altogether. The effect of these rules, hydrological models predicted, would be to maintain an average level of 6,392.6 feet and to hold the lake above 6,390 feet about 90 percent of the time.
Why 6,390 feet, after all, rather than 6,405 feet? According to project manager Jim Canaday, two considerations above all went into this solution: ducks and tufa. The water board staff thought that a portion of the duck habitat might be regained even at 6,390 feet, given active restoration work to bring back wetlands. But it questioned whether the enormous pre-diversion flocks could be restored at any lake level, even 6,405 feet, given habitat losses elsewhere along the Pacific Flyway.
It was the tufa issue, however, that was decisive. The board staff agreed with David Carle, ranger at the Mono Lake Tufa State Reserve, that there must be a "major visitor site" for tufa and that only South Tufa would serve. It is here that most people get their first close look at the lake today. The tufa grove is extensive, and the dryland portions are neither swampy nor brushy; you can move around. At a lake level of 6,390 feet, the upland area would shrink but would still accommodate a large number of visitors; at higher levels the usable area would vanish. At 6,390 feet, many of the towers would protrude from the water, their most spectacular setting; at higher levels the towers would be entirely submerged. As for tufa groves elsewhere around the lake, recommended by Audubon as alternate attractions, the board staff felt they just wouldn't do: they are smaller, their upland portions are swampy, and they are altogether harder to use.
Back in the early 1980s, the Mono Lake Committee had launched a campaign to put Mono Lake on the recreation map. The water board decision of 1994 was partly a consequence of that choice. The presence of parks around the lake had been an argument for high lake levels, up to a point; now that point had been reached, and the park managers signaled, "No more."
In Search of Closure
During the thirteen days between release of the final EIR on September 16, 1994, and the climactic water board hearing on September 28, the question was no longer what the decision would be. The question was whether any of the parties would appeal it to Judge Finney.
On the environmental side, there was some genuine disappointment that the board had not gone all the way to 6,405 feet; the Department of Fish and Game was also unhappy with the board's trimming of fish flows in Rush Creek. But there was ready agreement that the decision, so much more generous than anything on the horizon before 1993, would do. The state agencies and the environmental parties planned a press conference to announce their unified support.
In Los Angeles, most of the people in charge—the mayor, the Water and Power commissioners, even new Water and Power General Manager Bill McCarley—were anxious above all to see the matter settled. A year before, swayed by upbeat predictions from counsel, they had declined to force the issue. But now the time had plainly come. There was still internal resistance in two places, however: among the department's second-level staff, the people who had been fighting this battle for a decade; and among the department's attorneys. The sticking point was not so much the lake level, which had been expected, as it was the strong mandate for restoration work on the streams and now on lake-fringing wetlands as well.
Overpowered though they seemed to be, the old guard did not concede. The legal
Image not available.
Jim Wickser, head of water
operations, at the Los
Angeles headquarters of the
Department of Water and
Power.
(Photo by Gerda S. Mathan)
appeal was written and ready to go. And when the final Environmental Impact Report came out, water chief Jim Wickser sought to give the story an alarming spin. In an interview with the Los Angeles Times , he spoke of a "further threat to the city's water supply." He made no mention of the AB 444 agreement, which had already removed part of the water from contention. The wire services picked up the item in Wickser's terms.
Martha Davis hurried to counter the effects of the publicity, especially at City Hall. And on September 24, the Times weighed in with a stern editorial. "The train known as the Mono Lake issue has been roaring down the tracks toward Los Angeles for 16 years," it said. "Yet the Department of Water and Power just stood there. Now, predictably, it has been run over. . . . What is needed at the DWP is not just more water, but more vision, leadership, and courage."
On Monday, September 26, Davis, McCarley, Wickser, and Dennis Tito of the Board of Water and Power Commissioners sat down together. Davis promised that the committee would help secure outside funding for the restoration work. At the close of the meeting, Tito and McCarley announced they would not appeal. The following day, the Water and Power commissioners made it official.
So the news conference in the capitol on Wednesday, September 28—originally planned as a rally for one side—became instead a peace proclamation by both. With the notable exception of Water and Power staff, most of the characters involved in the story were present, either in the audience or at the microphone. "We are here to accept the state's decision," said Dennis Tito. Asked to comment on Jim Wickser's statement of the week before, Ruth Galanter responded, "He was outgunned." "The battle of Mono Lake ends September 29, 1994," said State Senator Tim Leslie. "No other area of the state," Davis emphasized, "will be injured by this decision." Dan Beard, head of the U.S. Bureau of Reclamation, promised continued funding for water reclamation proj-
ects. Jim Edmondson of CalTrout announced that he was headed over the hill to the Mono Basin—going fishing.
Then the group trooped upstairs to a special meeting of the State Water Resources Control Board in the mural-bedecked California Room. The hearing that followed was essentially ceremonial. After the 5-0 vote adopting the Draft Decision the two hundred spectators stood up and applauded. It was the first time anyone could recall such a demonstration at the water board.
Looking back over the years since the launching of the public trust lawsuit in 1979, since the beginning of diversion in 1940, or even since William Mulholland's first visit to the Mono Basin in 1904, it is easy to gain a false impression. It appears as though the abstract beast "society" had created a problem at Mono Lake and then evolved an organ, so to speak, that could correct it. There seems a kind of inevitability to it all, as if events could not have taken any other form.
This is an illusion. The solution at Mono Lake depended on incredible individual tenacity; on efforts that often seemed hopeless; on more than a little dumb luck. Even the early and seemingly futile local resistance to the will of the Department of Water and Power turned out to play a role. Elden Vestal's notes had their hour. Over the decades, one after another, players stepped forward, shouldered the Mono burden for a few months or years, and then passed it on. Many of the people involved never knew each other. Of the ones that did, quite a number didn't like each other. And no two of them seem to have agreed about just who did what. But they formed a collective force that proved irresistible.
Yet perhaps the impression of a society correcting a misstep isn't so wrong after all. If our complex, flawed, and multicentric democracy does not guarantee an outcome like the one at Mono Lake, it does at least permit it if the necessary people will step forward. We are never truly stuck with our mistakes, even the ones we think we have cast in stone. That fact should arouse, in the most disillusioned mind, a secret stirring of hope.
The New Future of Mono Lake
"It's a great decision," Martha Davis said after the water board action, "but there's a lot of implementation ahead." Indeed there was, and the next phase began in some confusion. The restoration planning described in the decision left no place for the existing Restoration Technical Committee; it would take some months to determine how much of the earlier thinking would be carried forward. A few other questions remained for further study.
But for all the fuzziness of a few of the brushstrokes, the picture was distinct. Mono Lake has been saved.
When the lake was sinking toward its nadir, only a few people paid dose attention. As it rises, the world will be watching.
Image not available.
Martha Davis at South Tufa, 1994.
(Photo by Gerda S. Mathan)
At the Old Marina, the site for years of the annual Bucket Walk and "rehydration ceremony," the true rehydration will proceed. The muddy edge will disappear; the path to the lake will shorten. In the end, the water will cover most of the present parking lot. Boat ramps, built in the 1960s and useless for thirty years, will once again slant suggestively into the waves. Where U.S. 395 borders the lake, the water will come markedly closer to the road.
At the tufa groves, the rising tide will spread among the towers. Tufa masses now at the shoreline will become islands; towers now standing in the bushes, barely glanced at by people striding on toward the lake, will rise again beside their reflections in the water. At South Tufa, some towers will fall.
Negit Island will regain its isolation. First a strait will sever the land bridge near the island end, and another waterway will open near the mainland. As the lake continues to rise, the flat, pale islet between the straits will shrink until, in the target elevation, it skims just above the waves or forms a shoal below them. Negit itself will stand well off shore. Though coyotes are known to swim, the widening waters should eventually discourage them, and the gull colony should return.
On the great arc of the lake's eastern rim, the alkali band will shrink until, in most places, lakewater meets either vegetation or dark-colored sand. From a distance the lake will appear "full." Dust will blow here and there, but the great regional storms should be no more.
Along the shore, wetlands will more commonly be found near open water, providing good habitat for ducks. The lake will reoccupy abandoned coves. In these windsheltered bights, fresh water from runoff will tend to remain separate, floating above the salt. Brackish surface waters, too, are good for ducks. Waterfowl numbers should increase.
On the west shore, the lake will invade the eroded channels made by the streams in the years of decline. The result will be fiordlike inlets called rias , that favorite word of
crossword-puzzle writers. Where fresh water meets salt, well up the rias, new marshes should form.
Upstream along the creeks, the natural recovery of woods and habitats will continue. So will some degree of deliberate restoration. At the Lee Vining Creek diversion dam, the Department of Water and Power is to install a low-level bypass through which sediment can feed into the lower reach of the creek; this should hasten the rebuilding of the soil. A dry subsidiary channel that runs alongside Highway 120 is slated to receive water, giving trans-Sierra drivers a glimpse of restoration at work.
On Rush Creek, the rewatering of abandoned channels, proposed by the earlier planners and endorsed by the water board, seems certain to go forward. Unclear is the fate of a more ambitious plan to restore the springs near the narrows, once the heart of the Rush Creek habitat, by recharging an aquifer on the Cain Ranch above. (The key, according to Scott Stine, is to divide the flows of Parker and Walker creeks among their old distributary channels.)
For many decades, the Mono Basin will continue to be a landscape on the way back, rebounding, repairing itself by human permission and with some degree of human connivance. At the same time, it will continue to yield, if in lessened quantity, a utilitarian resource. We have no ready word to describe such a landscape. Despite the presence of a National Forest Scenic Area, it is not precisely a park. Designation as a park ordinarily rules out resource extraction, on the one hand, and on the other it implies a mere defense, the retention of a status quo that can't undergo deliberate improvements. The situation in the Mono Basin is more complex and perhaps even more to be celebrated. If we lack a word for this kind of place, we have a perfectly good and traditional one for what is going to be going on there. We call it, simply, conservation.
Wallace Stegner once wrote of the "geography of hope." He situated parks and wilderness areas in that geography. But maybe the phrase applies even better to what the Mono Basin is becoming: an illustration that we can take something from nature without taking all, a reminder that we can change our minds, sometimes, and give a little back.