For whom the lawsuit tolls
MCWD, LADWP will attempt to reach a settlement
Under the threat of a 30-day deadline at the end of 2011, the Los Angeles Department of Water and Power hastily filed a lawsuit against the Mammoth Community Water District after the District finalized and approved its Environmental Impact Report (EIR) and subsequent project titled “Mammoth Creek Fishery Bypass Flow Requirements.”
Shortly after filing that suit, DWP sought a tolling agreement to slow the process down.
“You only have 30 days to file once the Notice of Determination is made or you can’t file,” MCWD’s legal counsel Steve Kronick said at the time. The tolling agreement would then suspend litigation in order to allow time for settlement discussions.
Following the filing of the first lawsuit, DWP then filed a second suit against the District seeking to invalidate the District’s 2010 Urban Water Management Plan, a standard planning document required by the state.
MCWD wasn’t sure it was ready to talk right away and did not agree to a tolling agreement on both suits until just last week.
“There was no consistent basis for tolling previously,” explained MCWD General Manager Greg Norby. “We didn’t have their attention to have meaningful discussions. We have spent the past months engaging the correct people for negotiations. There was no specific trigger, it’s just taken some time to get to this point.”
So the two agencies signed and filed paperwork to vacate the existing hearing date of Jan. 29, 2013, as well as the briefing schedule and instead set a status conference date with the courts.
“The lawsuit proceedings will be put on hold until we have two scheduled settlement meetings in LA,” Norby said. These meetings are scheduled for Oct. 9 and Oct. 17. A status conference call with court representatives will then be held on Oct. 18 to determine whether or not enough progress is being made to continue holding the tolling agreement.
While Norby said that there are no new proposals on the table right now and that MCWD would be building off of what it has proposed in the past, he does want the meetings to be “very substantive settlement meetings. We want to be there with constructive and reasonable alternatives.”
According to MCWD the original lawsuit was not to determine water rights, but to determine the adequacy of the EIR.
“The judge in this case will not address the validity of water rights,” Kronick had explained in January.
However, the underlying message from LADWP was that it did not believe the District had rights to Mammoth Creek. According to a Jan. 5 DWP press release, “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 based upon their [LADWP] water rights,” Kronick added in January.
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.
