Posted on 28 October 2011.
Is re-watering Mill Creek still just a dream?
The merits of re-watering Mill Creek have been debated ever since the City of Los Angeles was ordered to stop diverting water from Mono Lake in 1994. Today, parties on both sides are still arguing over how to go about the process.
As part of the 1994 court decree, LA was also required to implement stream and waterfowl habitat restoration measures in the Mono Basin to combat damage that had been done over the years when the lake level fell to historic lows due to L.A.’s diversions.
While Lee Vining Creek, Rush Creek, Walker Creek and Parker Creek were the main focus of restoration, Mill Creek, which runs into and out of the Lundy Reservoir, was also included. Since the late 19th century, water rights holders have diverted water from Mill Creek for irrigation. Since 1911, water has been taken from Mill Creek to Southern California Edison’s hydroelectric power plant and returned to Wilson Creek rather than to Mill. Over the years, Wilson Creek, originally just a drainage ditch, developed creek characteristics and habitat while Mill lost some water and habitat.
As L.A. was looking at opportunities to fulfill its restoration obligations after the 1994 decision, the State Water Resources Control Board (SWRCB) discussed re-watering Mill Creek in order to create more waterfowl habitat.
In 1998, the SWRCB concluded in Order WR 98-05 that since Mono Lake’s water level would only be required to be restored to an elevation of 6,392 feet and not its original 6,405 feet, waterfowl numbers would never be what they once were. Since Mill Creek was already being diverted before peak waterfowl population occurred (from the 1930s to the early 1960s), re-watering Mill Creek, according to the SWRCB “is not necessary to provide suitable waterfowl habitat under Decision 1631 [the 1994 court judgment] … LA diversions did not cause Mill Creeks reduction of flows.” It could, however, serve as a replacement for other waterfowl areas that may never be restored determined the SWRCB.
In the ensuing years, some water rights holders and some non-profits have pursued the re-watering project.
In 2004/2005, SCE proposed an amendment to its license agreement for the hydropower plant that would allow it to build an enhanced return conveyance facility to take water currently going from the tailrace of the power plant to Wilson Creek, and return it to Mill via pipeline in the Mill Creek Return Ditch. The plant discharges about 70 cfs (cubic feet per second) of water. The proposed pipe, which was approved [but not required] by the Federal Energy Regulatory Commission (FERC) this past spring, would be able to divert up to 52 cfs.
LA has water rights on Mill Creek but not on Wilson Creek, according to Geoff McQuilkin, Executive Director of the Mono Lake Committee, one of the non-profits in favor of the re-watering.
Once LA reaches the 6,392 foot level at Mono Lake, it will be allowed to divert more water back to the City for municipal use; approximately 1/3 of its historic diversion, according to a summary at www.monobasinresearch.org of the litigation and legislative designations surrounding Mono Lake.
“Raising the lake takes longer with Wilson,” McQuilkin said.
The SWRCB confirmed this in its 1998 report. “If natural flows to Mill Creek were restored, the inflow to Mono Lake would increase.”
When The Sheet pointed out to McQuilkin that it appeared as though the Mono Lake Committee was in bed with L.A. on this project, McQuilkin pointed out that the two parties do share the same goal of filling Mono Lake.
Also, pointed out in the 1998 report, if the lake does not reach 6,391 by Sept. 28, 2014, Decision 1631 calls for the SWRCB to consider if further revisions to the conditions in Los Angeles’ licenses are appropriate. In the event the water elevation at Mono Lake has reached 6,391 feet by 2014, Decision 1631 does not require a further hearing.
The current lake level is 6,383.8 feet, according to the Mono Lake Committee’s website, which means LA needs to raise the lake seven more feet in the next three years in order to avoid a further hearing on Decision 1631.
The pipeline in the Mill Creek Return Ditch would more efficiently bring water back to Mill because the water would not be subject to freezing or ground absorption.
However, some in the Mono Basin are debating the validity of the project for at least two reasons. First, the method of how to pay for the installment of the pipe has not been fully vetted. Second, some parties still believe a complete environmental analysis on the effect of moving water from Wilson to Mill has not been done.
Eastern Sierra resident Katie Maloney Bellomo is the lawyer representing the People for Mono Basin Preservation and the Eastern Sierra Ratepayer Association. Bellomo stated that SCE is still figuring out how to pay for the $5 million pipeline project.
She is currently arguing against SCE’s request to the Public Utilities Commission to allow SCE to pass on the cost of the pipeline construction to its ratepayers.
“SCE only has the permit to build the pipe right now, but it needs permission from the PUC to charge customers for it,” Bellomo said. “If they [SCE] don’t win the case the shareholders would have to pay for the construction. They may not build the pipe if the shareholders have to pay for it.” Bellomo expected a decision on this case by December or January.
If the pipeline does get built, it doesn’t automatically mean water will flow into it. Bellomo maintained that FERC only authorized the construction of the pipe, not putting water back into Mill because it does not have the authority to do so.
Another issue that Bellomo’s groups, as well as Mill Creek water-right holder Mono County have pressed is the need for environmental analysis to determine what would happen if the water were moved.
“FERC says they don’t have to analyze it because they aren’t dealing with the water, just the pipe,” said Mono County Counsel Marshall Rudolph. “The County disagrees with this, but as of now no agency in California has studied this issue. No one has done a full-blown study to satisfy NEPA (National Environmental Policy Act) or CEQA (California Environmental Quality Act), and I’m not sure any state agency is going to end up being responsible to do so.”
The County has not signed on to agreements allowing the installation of the pipe.
FERC on the other hand believed that an Environmental Assessment it conducted for the potential environmental impacts that may result from the installation of the pipe was all the analysis needed.
“First, she [Bellomo] has been making many of her points since before the 2005 hydropower license settlement, and she has made them directly and in detail to FERC,” McQuilkin said. “As a result, in issuing its approval for SCE to move ahead with the rehabilitation project, FERC did take a careful look at things like the adequacy of the environmental studies conducted and concluded that the project is ready to proceed. In other words, words, these claims have already been raised and answered. There’s specific language responding to these claims in the March 17, 2011 ruling, such as ‘Mono County and Mono Basin Preservation have not presented any reason for us to reconsider the adequacy of staff’s EA.’
After the pipe is put in, it’s up to the water rights holders to make a plan of what to do with the water,” he continued. “Once the pipe is there, parties should just follow the water rights. Once the pipe is in, SCE can open the gate.”
FERC maintained in its March report that “the EA was virtually equivalent to an EIS, and there was no basis to expect that an EIS would have been more thorough or would have reached different conclusions.”
According to www.nationalaglawcenter.org, “EAs are conducted to determine whether an EIS is needed or a finding of no significant impact (FONSI) is appropriate.”
According to a letter filed by the County to FERC in 2010, “An EIS is required when an EA establishes that an agency’s action may have a significant effect on the environment.”
McQuilkin stated that because the project no longer planned to move all the water from Wilson Creek, but just some of it, an environmental analysis was not necessary.
“We are fixing an historic problem or mistake,” he said. “We are coming back into compliance. Mill Creek and its fishery, forests, and wildlife habitat are suffering from the diversion of over 80% of creek’s water. About half those diversions are made by water rights holders, and the other half are caused by a degraded ditch that just can’t do the job of moving water used for hydropower back to Mill Creek, a situation the pipeline will fix.”
“Environmental impacts may come into play even if only some of the water is moved,” Bellomo argued. “You can say anything you want, but all we’re saying is do the environmental analysis to be sure. We have two important habitats and we don’t want to lose either.”
Diverting any of the water from Wilson Creek could mean that less water or zero water makes it to the creek’s output at Mono Lake. Currently this output area has a habitat that could be lost if the water dries up. Whether this is a positive or a negative is also disputed between the parties.
Mono County is also greatly concerned about what the pipe would do to its water rights. Currently, Mono County uses water from Wilson Creek to irrigate its land in the Mono Basin, including Conway Ranch.
Even though the current project concept would only allow a portion of the water returning from the hydropower plant to go back to Mill Creek and theoretically Mono County would still receive its water rights from Wilson Creek, the County is skeptical.
“In theory we are still entitled to our water rights on Wilson Creek, the pipe doesn’t take that away,” Rudolph explained. It’s the uncertainty of what will follow the installation of the pipe that is the issue.
“If the pipe is there, people could challenge the County’s water rights,” Rudolph said. “Some parties have said that the County’s winter water rights are questionable because of non-use. The County doesn’t agree but some people have made the argument.”
Rudolph pointed out that winter is the key period to the agency’s water rights concerns.
“The flows are low and there’s not a whole lot of water to go around,” he said. “Right now it is pointless to challenge the County’s water rights because the Mill Creek Return Ditch water freezes over in the winter. Installation of the pipe in theory would allow water to be moved in the winter and rights could be challenged. It could create non-legal political pressure to use less water on Conway Ranch.”
“The water rights were all disputed in 1914,” McQuilkin said. “They were litigated and adjudged by 1914 and are very clear. It [re-watering Mill] won’t impact water rights; it will just put the extra back into Mill. There is more in there [Wilson] than County rights call for.”
Rudolph admitted that the County’s concerns revolved around the worst-case scenario and may potentially never happen.
“But right now, without the pipe, it’s not even in the realm of possibility,” he said.
The County would prefer to simply see the current Mill Creek Return Ditch enhanced. By leaving it as a ditch, but simply lining it, the water would still be unable to move in the winter and it would alleviate the concern, Rudolph said.
“In any event, an environmental analysis should be done,” he added.