Litigious LADWP
Agency changes tactic in Owens Lake dust control dealings and elsewhere
In recent months, while the Los Angeles Dept. of Water and Power began litigation against the Mammoth Community Water District (“LADWP sues MCWD,” The Sheet, Jan. 28), it was also in the process of appealing what it claims are new requirements by the Great Basin Unified Air Pollution Control District (GBUAPCD) for dust mitigation efforts on Owens Lake.
“There is no direct connection, but it is strange to me that they’re litigious with both agencies,” said GBUAPCD Air Pollution Control Officer Ted Schade. “In the past they have been reluctant to work with us but have realized they have an obligation and have been reasonable. In the past we wouldn’t hear from their attorneys; now everything is run by their attorneys, which is unfortunate.”
Schade said there is no doubt, at least in the case of LADWP’s current issues with Owens Lake, that the recent protests are related to the current economy.
“They [LADWP] have incurred a lot of expenses over the years [in the Owens Valley],” Schade said. “They have had no significant rate increases and can’t right now because of the economy. If you can’t increase revenue, then you are forced to cut costs.”
Since people in the Owens Valley don’t vote in Los Angeles, looking for cost savings here first would make sense, Schade said.
According to a press release issued by LADWP on Feb. 23, it is “concerned that we are being required to control dust on areas that are at higher lake elevations than pre-Los Angeles Aqueduct diversion levels and thus caused by nature or others. We are concerned that as we near the 96% control level and have done all that we have been asked, believing that we are near the end, suddenly there seems to be no end. Simply put, LADWP believes we are now being required to mitigate against the effects of nature or others for which we have no responsibility.”
The release also stated that LADWP is concerned that it is only allowed to use three methods of mitigation: water, gravel and vegetation. It calls upon GBUAPCD to develop new dust control methods and scolds it for not having done so already.
Schade, however, pointed out that LADWP has full control over what it uses to control the dust.
“Air quality regulators have no obligation to develop air pollution controls for air polluters,” Schade said in a recent newspaper column. “If the LADWP is unsatisfied with the current approved controls, they have a responsibility to their ratepayers to develop new, effective controls. It is Great Basin’s responsibility to review and approve successful controls.”
In 1997, LADWP had originally committed to mitigating 45 square miles of the Owens Lake with the knowledge that GBUAPCD would continue to monitor the amount of area that required dust control. At the time, GBUAPCD had estimated that controls would be required on about 46.5 square miles of the dried lakebed, according to Shade. The dust is an effect generated by the City of LA’s water gathering activities and is the largest single source of particulate matter (PM) air pollution in the country.
“Mitigation is done when dust levels have been reduced enough to meet federal standards,” Schade explained of the original agreement. Recently, the GBUAPCD reevaluated the square mileage needing mitigation and determined that in fact, 47.9 square miles needs mitigation in order to meet standards. The announcement of the new number is what triggered DWP’s appeal.
Currently, LADWP has mitigated 39.5 square miles and 90 percent of the dust has been controlled.
“We’re getting close,” Schade expressed, “so we’re scratching our head at why they are balking now.”
The cost to mitigate an additional 3 square miles (to attain the 47.9 square miles the GBUAPCD now requires) would cost anywhere between $50 million and $75 million, depending on what DWP chooses to use as mitigation, Schade said. Shallow flooding of the area is the cheapest method at approximately $15 million per square mile, Schade estimated, versus approximately $26 million per square mile for gravel. Vegetation mitigation is somewhere in between. The shallow flooding method is what DWP has used for the majority of the 39.5 square miles it has already mitigated.
The issue with shallow flooding is it requires continued maintenance.
“With wetting you have to continue because water evaporates,” Schade explained. Also, by using water to control the dust on much of the 39.5 square miles already mitigated, DWP has created wildlife habitats that according to Schade, it must now maintain.
“While gravel is the most expensive initially, it requires the least maintenance,” he said. “They could just walk away from it.”
This cost would be in addition to the $5.6 million fine that DWP paid to the Owens Valley because it missed a 2010 deadline. According to the agreement, DWP was expected to have approximately 43 square miles of mitigation completed by the end of 2010. It failed to reach that number for various reasons and had to pay the fine, which is being used for clean air projects in the Eastern Sierra.
Whatever the motive, monetary or otherwise, DWP filed an appeal to GBUAPCD’s new requirements in December 2011. Last week, it attempted to ram the process through more quickly by filing a motion to sue the California Air Resources Board for its required appeal process, claiming the amount of time the process would take would cause DWP irreparable harm in the form of attorney’s fees. This, following on the heels of DWP comments to GBUAPCD that the cost of attorney’s fees pale in comparison to what it costs to mitigate the lakebed.
The motion was denied in court and the appeal will go through the normal timeline and process, which Schade believes will last through mid-May.
MCWD and LADWP update
Since The Sheet’s last report on MCWD/LADWP dealings, LADWP has filed a second lawsuit against the Mammoth Water District. This one, said MCWD General Manager Greg Norby, seeks to invalidate the District’s 2010 Urban Water Management Plan, a standard planning document required by the state. Both lawsuits are based upon the underlying issue that LADWP does not believe MCWD has legal rights to surface water for Mammoth Creek.
Norby and other MCWD representatives will meet with LADWP again on March 28 to discuss broad, long-term goals. If they can agree on some bigger picture draft settlement principles, then Norby said, MCWD would look at entering into a tolling agreement, which would put the lawsuits on hold while the two agencies continue to talk.
“But there’s no point in a tolling agreement if our long-term vision isn’t somewhere in the same realm,” Norby said.
In regard to the bigger, Eastern Sierra picture, Norby said that the area needs unified representation up and down the valley. He referred to all of the different water agencies currently dealing with LADWP, including Inyo County’s groundwater pumping, the Lower Owens rewatering, and Mono Lake, as well as the aforementioned Owens Lake.
“We all go it alone even though we have a common set of overriding interests,” Norby observed. “The closest thing we’ve got to unified representation is the IRWMP (Integrated Regional Water Management Program).”
While Norby thinks this program, which does represent Inyo and Mono county water agencies, can grow into the representation needed, he pointed out that currently, LADWP sits at the IRWMP table but hasn’t actually joined the group by signing the MOU.
