Mono County uneasy about water rights
On Tuesday, Oct. 8 the Mill Creek re-watering project came before the Mono County Board of Supervisors at its regular meeting in the form of an easement request from Southern California Edison (SCE).
SCE was requesting a 50’ wide underground pipeline easement on Mono County property for construction of a new Mill Creek Return Conveyance Facility to comply with a 2005 Settlement Agreement that it entered into regarding a new license for the Lundy Hydroelectric Project. The requested easement would consist of approximately 1.115 acres of area on property owned by Mono County.
According to the staff report, “because the request is not a ‘development application,’ but rather a request for an easement from the County, there is a threshold issue which must be answered before CEQA (California Environmental Quality Act) review is commenced. Specifically, is the County even willing to consider granting SCE’s request for an easement, such that SCE (and the County) should invest significant staff time and resources in conducting environmental review? [Granting of the easement would trigger the CEQA process.] Given the conveyance facility concerns previously expressed by the Board of Supervisors regarding impacts to County property at Conway Ranch and potential effects on regional resources, there may not be interest in granting the easement.”
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, and past Boards have weighed in on the potential impacts that the re-watering could have on the County’s water rights.
“Historically there have been two concerns over the conveyance facility,” Mono County Counsel Marshall Rudolph explained on Tuesday: water rights and environmental study.
“In theory we are still entitled to our water rights… the pipe doesn’t take that away,” Rudolph explained to The Sheet in 2011 for our story “Not So Gently Down the Stream.” 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 two years ago 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.”
As part of the 1994 court decree to stop diverting from Mono Lake, L.A. 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 Creek. Over the years, Wilson Creek, originally just a drainage ditch, developed creek characteristics and habitat while Mill Creek lost 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]… L.A. diversions did not cause Mill Creek’s reduction of flows.” It could, however, serve as a replacement for other waterfowl areas that may never be restored, determined the SWRCB.
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 Creek 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) in 2011, would be able to divert up to 52 cfs.
The pipeline in the Mill Creek Return Ditch would more efficiently bring water back to Mill Creek because the water would not be subject to freezing or ground absorption.
“The return conveyance is the best method,” SCE representative Dan Golden explained on Tuesday. “We know the environmental assessment needs to be done but we don’t want to spend a bunch on analysis if the easement is not going to be approved.”
In the past, no agency has stepped up to do the environmental analysis, which has been another sore spot in the process. All discussions at this time could be considered speculation because no analysis has been done.
However, Supervisor Larry Johnston stood alone in his desire to grant the easement and trigger the CEQA process.
“We should do the environmental analysis and then make informed decisions,” Johnston said. “The easement doesn’t have anything to do with water rights. They [SCE] can go around us with engineering wizardry if we don’t approve the easement.”
His fellow Board members, however, feared the potential affects on water rights too much to get the ball rolling with approval of an easement.
“We have to protect the rights for Conway Ranch,” said Supervisor Byng Hunt. “SCE can come back and reapply once the environmental analysis is done.”
“The winter water rights will be challenged if the conveyance is put in,” said Supervisor Tim Alpers. “The environmental report would be a titanic expense to really look at this thing. I can’t support granting the easement at this time.”
Supervisors Fred Stump and Tim Fesko agreed. The Board voted 4-1 (Johnston voting no) to deny the easement request.
For the full background on this story, see “Not So Gently Down the Stream” at thesheetnews.com.
