Timeline
Mono @ 20: continued from previous page
be adjusted to protect the public trust. This decision was historic because it expanded the traditional application of public trust beyond the realm of fishing in navigable waters to now encompass the broader protection of fish, habitat, and ecosystems.
CalTrout stepped into the fight in the 1980s, arguing that a long-ignored section of the state's Fish and Game code (Section 5937) required LADWP to leave enough water below its dams to keep fish "in good condition." In 1985, the lawsuit that would eventually be known as CalTrout I, pitted the public's right to a fishery (that existed prior to LADWP's diversions) against LADWP's claims to all the water in Rush Creek. The judge eventually sided with CalTrout and – invoking 5937 – ruled that the state-granted licenses to LADWP were not legal. This breakthrough decision was a critical milestone in the effort to save Mono Basin, but more broadly it provided fisheries groups with a powerful tool to apply against other dam operators.
In 1990, when it became clear that the SWRCB was dragging its feet in amending LADWP's water licenses, CalTrout returned to the Third District Court of Appeals. The Court ordered that the historic fisheries on the four main Mono tributaries be restored immediately. This became known as the CalTrout II ruling, and it paved the way for the historic 1994 SWRCB decision that not only amended LADWP's water license, but also mandated restoration efforts for fish and waterfowl.
To continue reading the story, click here.
LADWP initially objected to the recommendations in the Synthesis Report, raising the specter of more lawsuits and delays. But rather than see the process bogged down in litigation, CalTrout's Eastern Sierra Regional Manager, Dr. Mark Drew, along with partners, engaged LADWP in a facilitated mediation process that, after three years, resulted in a significant settlement. The 2013 settlement provides for a comprehensive set of restoration activities providing for Mother Nature to return Rush and Lee Vining Creeks to the world-class fisheries Field and Stream magazine claims they were in the 1930s.
Let the Work Begin
One of the Synthesis Report’s key recommendations for the recovery of Rush Creek calls for periodic releases of high volumes of water to mimic natural snowmelt runoff conditions. This will not only maintain stream channels, but also create deeper pools in the creek which are needed to promote better growth rates in brown trout and winter holding habitat. The report also makes recommendations about how to promote riparian recovery and provide for cooler water releases from Grant Lake into Rush Creek.
It's worth recalling that there were no trout in Rush Creek and the other feeder streams prior to the 1870s when early European settlers introduced trout in the local streams. The main goal of the restoration efforts is to approximate the ecological conditions that existed in Rush Creek and the other feeder streams prior to the water diversions that began in the 1940s, providing the basis for a thriving trout population.
When asked about the prospects for Rush Creek recovery, Mark Drew expressed optimism. "I think we are on a good recovery trajectory now. The science and research that has taken place over the last twelve years will help to accelerate the recovery of the broader ecosystem. It's going to take some time, and we all need to be patient, but the framework and the tools are in place."
Mark also described CalTrout's role in the next phase of recovery. "The terms of the settlement agreement have been incorporated into the LADWP water license, and the parties are going before the Water Board to finalize the amended license terms. CalTrout's primary role will be as a member of the monitoring and administration team that is tasked with ensuring that the terms of the agreement are implemented and modified, as needed, based on changes to the ecosystem caused by increased flows and other aspects of the restoration recommendations included in the Synthesis Report."
Statewide Implications
One of the main questions posed at the Mono @ 20 Symposium was whether the lessons of the Mono Basin case could be applied to other water recovery projects in the state. Felicia Marcus, the Chair of the SWRCB, told attendees in her opening remarks that the dialog on water rights in other parts of the state are often too polarized: fish vs. farmers, urban needs vs. wildlife, etc. She encouraged an approach that recognizes the historical context in water negotiations. For example, it should be acknowledged that farmers have built a livelihood and a critical agricultural component of our economy over the past century or more based on an assumed level of water supply for irrigation. Felicia granted that certain water rights might need to be adjusted to strike a better balance for fish and the environment, but she encouraged the parties in a water dispute to engage in a collaborative approach that ensures that everyone's needs are considered as part of the overall solution.
Mark Del Piero, who was the hearing officer for the SWRCB during the proceedings that resulted in D1631, echoed Felicia's sentiments and noted that a key factor in the Mono Lake success story was the active involvement of advocates in assisting LADWP to replace the lost water supply. Members of the Mono Lake Committee worked hand-in-hand with LADWP to establish water recycling, storm capture, and similar programs that provided for reliable local sources of water for Los Angeles.
Later in the symposium, Martha Davis, who was the leader of the Mono Committee during the 1980s, described how she and other members of the Committee engaged in a grass roots campaign in Los Angeles to ensure that the water needs of the people would be met. She and other committee members attended Los Angeles city council meetings, engaged young people in lower income areas in door-to-door campaigning for water conservation, and took other steps that built trust and a feeling of shared responsibility in forging a solution that was acceptable to both sides. Martha also described how the Mono Lake Committee was instrumental in securing state and federal funding to help the city to forge ahead with water reclamation.
Marty Adams, the General Manager of LADWP's water systems, provided an update on his city's ambitious goals for reducing per capita water usage. Through conservation and development of local water sources, LADWP has dramatically reduced its purchase of water from other systems.. It is quite remarkable how Los Angeles, within a period of a few decades, has gone from a position of feeling entitled to every drop of water in Rush Creek to being one of the leaders in urban water conservation and reclamation.
During one of the panel discussions, CalTrout's Mark Drew stressed a similar theme by highlighting the importance of parties finding common ground in water disputes. In addition, Mark pointed out that there needs to be sufficient funding for scientific studies, restoration work, and ongoing monitoring. Mark and several other panelists noted throughout the day that there needs to be a long-term commitment to restoration work which can take several decades or more to achieve its objectives. Several speakers pointed out that the initial goals of a watershed restoration project will most likely need to be adjusted over time based on how the ecosystem responds to factors such as increased flows, droughts, global warming, and other variables. In some sense, a restoration project (such as the one for Mono Basin) never ends, requiring tweaks and adjustments based on our changing climate and the evolving ecosystem.
The symposium speakers and panelists addressed why the Mono Basin story is unique and has been so hard to replicate in other major water disputes. Richard Roos-Collins, legal counsel for CalTrout, talked about some of the factors that made the Mono Basin more narrowly focused than other state water disputes. There was only one defendant (LADWP) in the case; only the water rights to the headwaters of a watershed were in dispute; and no migratory fish (such as salmon) were involved. Contrast that situation with the San Joaquin River, for example, which has a myriad of water right licenses, multiple water districts, recreational uses on reservoirs, historic runs of salmon and steelhead, and other competing "beneficial uses" that need to be reconciled.
Several legal experts made the point that it is not the responsibility of the courts to dictate how or when a water system should be restored. The courts act when plaintiffs bring a case to trial, but the judge will always refer the parties to an agency such as the State Water Board to work out the detailed restoration plan. Another challenge in the process is that the State Water Board is inadequately funded to hire scientists and consultants to conduct the studies that form the basis for a detailed restoration plan. As in the Mono Basin case, the board will require one of the parties (LADWP, in this instance) to pay for the scientific analysis and report. One panelist called for dramatically increasing the budget of the State Water Board to expedite the resolution of water disputes, but with today's tight state budgets, that is very unlikely to occur.
Richard Roos-Collins proposed that the State Water Board establish a digital database of all water rights in the state-- an effective way to streamline water disputes by making these key documents readily available during hearings. Richard pointed out that the Federal Energy Regulatory Commission (FERC) maintains a digital database of hydroelectric power licenses, which is an important resource during dam relicensing proceedings.
At the conclusion of the symposium, Mark Drew offered his perspective, "The process that has taken place in the Mono Basin is a model that can be replicated in other places. It's true that in the Mono Basin, there is only one water right holder (LADWP), and that is fairly unique. But in terms of how we went about it, using law initially (upwards of 30 years ago) to set a course that resulted in a restoration plan for the ecosystem, that model is replicable."
Mark continued, "We had a choice in 2010 when the Synthesis Report came out: the LADWP could have rejected the recommendations in the report, and then the parties would have gone down a court battle path. At that point, CalTrout partnered with the LADWP and jointly went before the SWRCB and asked to be granted an opportunity to see if we could resolve our differences. I'm very proud of the role CalTrout played in these negotiations. CalTrout was pivotal in bringing the parties together to find that middle ground."
Looking Forward
Happily, here at the 20-year mark, we can celebrate that we are turning that scientific knowledge into the next wave of on-the-ground stream restoration. Last year’s landmark Mono Basin Stream Restoration Agreement is a turning point in restoring Rush, Lee Vining, Parker, and Walker creeks to good health. Construction of the new outlet in Grant Dam and the implementation of stream flows that mimic natural snowmelt patterns will be a huge restoration advance. With continued perseverance before very long, fly fishermen can look forward to fishing for large brown trout that have been missing for the past 75 years.
HEADWATERS