Earlier this month, the Mammoth Community Water District was served with papers by the Los Angeles Department of Water and Power in the Mono County Superior Court. The action was triggered by the recent finalization and approval of MCWD’s Environmental Impact Report (EIR) and subsequent project titled “Mammoth Creek Fishery Bypass Flow Requirements.”
“The judge in this case will not address the validity of water rights,” explained general counsel for MCWD Steve Kronick regarding some of the misconceptions surrounding the suit. “The lawsuit is to determine the adequacy of our EIR.”
MCWD had been working on collecting data for this EIR and project for nearly 15 years at the request of Caltrout and the Department of Fish and Game. The end goal of all of the study was to determine whether or not the flows that MCWD was using on Mammoth Creek were at the most beneficial levels for the fish living in that habitat.
However, according to a Jan. 5 press release from LADWP, “The LADWP legal challenge is based upon temporary Mammoth Creek water rights permits that were granted to the MCWD by the State Water Resources Control Board (SWRCB), but are subordinate to the water rights held by the City of Los Angeles.” The agency believes that the EIR is fundamentally flawed because it excludes water rights issues.
“They believe we should have evaluated the project on their water rights,” Kronick added. However, according to Kronick, the California Environmental Quality Act (CEQA), which provides the guidelines for the EIR process, does not require looking at legal water rights in an EIR, just effects of the project on the environment.
So the lawsuit comes down to a question and interpretation of CEQA law, but an argument over water rights seems to be an underlying issue when reading the LADWP press release. The actual bypass flow requirements project will not decrease the flow in Mammoth Creek, according to Kronick.
LADWP claimed in its press release that MCWD’s water rights on Mammoth Creek are “temporary.” In its comments on the EIR, LADWP also stated “because the SWRCB has no jurisdiction over pre-1914 appropriated water rights, they had no right to award the District its two post-1914 licenses in 1947, 1957 and the permit in 1978. The SWRCB may have given away a portion of the City’s water rights.”
LADWP believes, according to its press release, that “Los Angeles has senior water rights to Mammoth Creek flows based upon the City’s 1905 Owens River water rights filing.”
MCWD, however, points to the Water Commission Act, which became effective in 1914. MCWD claims that act gave SWRCB jurisdiction over appropriative water rights, which means that the licenses and the permit that it has awarded MCWD are valid.
According to MCWD’s response to LADWP’s comments on the EIR, the only way to fully determine water rights on the creek would be to go through an adjudication process, which would have to involve all the claimants on the creek.
“This proceeding, to determine the long-term fishery bypass flow requirements for Mammoth Creek, should not be turned into such an adjudication,” MCWD’s response to comments stated.
“DWP has a claim of rights, but it’s not adjudicated,” Kronick further explained.
MCWD General Manager Greg Norby wasn’t surprised by the legal action taken earlier this month.
“We had indications last November but we weren’t sure where it was headed,” Norby explained. MCWD has been trying to communicate with LADWP on its concerns, but “they are difficult to contact, let’s just leave it at that,” Norby said.
The District even went so far as to break up the approval process of the EIR and the project to allow more time to work with LADWP.
“Usually you certify the EIR and approve the project at the same time,” Norby explained. “We separated the two in order to be able to have these conversations.”
The EIR was certified in May 2011, but the District held off on approving the project for about six months. When it realized, however, that it wasn’t making progress with LADWP, it went ahead and approved the project on Dec. 2, 2011.
With the project’s approval comes a Notice of Determination that triggers a deadline to file litigation.
“You only have 30 days to file once the Notice of Determination is made or you can’t file,” Kronick said. Which explains the timing of LADWP’s suit as well as the tolling agreement that the agency is now requesting.
The tolling agreement suspends litigation in order to allow time for settlement discussions.
According to Kronick, the two parties are required to hold a settlement conference within 45 days of the filing of a suit. In this case, that means 45 days from when the District was served on Jan. 9, Kronick said.
“It looks like we are going to hold this conference on Feb. 21,” Kronick said. “The District would be interested in a tolling agreement if we see progress made at this meeting. We want to find a resolution outside of court.”
In terms of the water rights, Norby explained that LADWP’s claim in its press release that the EIR “depends upon drafting water from Mammoth Creek to meet the town’s future growth,” is simply inaccurate.
“The Mammoth Creek supply is needed now, not for future supply,” Norby said.
If the District were to lose the current lawsuit, the consequences would be that it would have to spend money to redo portions of the EIR and perhaps reimburse LADWP for legal fees, according to Kronick.
If the District were to win, the last step for the EIR and project process would be for the state to amend the District’s permit and licenses with the new flow requirements.