One of the important features of the Inyo-LA Long Term Water Agreement (LTWA) is its provision for joint management. In theory, this gave Inyo County – the colony — equal power with DWP – the colonial power — and would seem to have been a major victory for the county. Unfortunately, (as with just about every part of the LTWA) reality has proven rather different from theory.
There are two bodies with legal responsibility for implementing the LTWA: the Technical Group and the Standing Committee. In both bodies DWP has one vote and Inyo has one vote. While this gives Inyo equal power as DWP it has also proven to be a recipe for gridlock.
When the Technical Group cannot reach agreement on an issue, it can refer the question to the Standing Committee (which consists of political leaders). If the Standing Committee cannot reach agreement, there is a formal procedure in the LTWA for resolving disputes. It calls for the Standing Committee to hire an arbitrator, whose decision can then be appealed to Inyo County Court. According to Inyo attorney Greg James, the idea was that the court would be a third party to settle disagreements.
Unfortunately, there are a variety a ways either party can prevent court involvement. In one case, DWP refused to attend a Technical Group meeting regarding a disputed issue. In effect, it filibustered – DWP prolonged the discussion, then declared that the meeting room had to be vacated because it was 4:30 pm and DWP staff never work late. Over Inyo’s objection the meeting was continued. About a month later, when the meeting was resumed, DWP continued its filibuster, then abruptly walked out of the meeting, once again preventing a decision on sending the dispute to the Standing Committee. In this way one Technical Group meeting was continued through three actual meetings spread over an entire summer.
When the dispute finally reached the Standing Committee, DWP refused to agree to initiate the dispute resolution process (i.e. hire an arbitrator) because it did not accept the wording of Inyo’s complaint. Imagine a dispute resolution process in which the defendant gets veto power over the plaintiff’s complaint – that is how the LTWA dispute process works! In this particular case, DWP never agreed to Inyo’s complaint, and, instead, persuaded Inyo to agree to an entirely different complaint framed by DWP. Not surprisingly, DWP prevailed in the arbitrators’ decision.
In the case above, the dispute resolution process was greatly abused, but, the process was eventually followed.
In some cases DWP has ignored the dispute resolution process entirely. In 2000 DWP released a report by its consultants which asserted that the goals of the Drought Recovery Policy (DRP) had been met and that the policy should be terminated. Inyo County did not concur with the findings of DWP’s consultants and wrote a detailed critique of DWP’s report. The issue was discussed by both the Technical Group and Standing Committee but no agreement was reached. DWP then ceased complying with the DRP the following year. Inyo had strong procedural grounds (DWP cannot unilaterally terminate a policy enacted by the Standing Committee) and substantive grounds (abundant data showed DRP goals had not been met) to challenge DWP’s unilateral termination but never did, DRP-termination. As a result, as of 2015, water tables have never fully recovered from DWP’s over-pumping in the drought of the late 1980’s and we are now in the fourth year of an even more serious drought.
In another case, DWP ignored the LTWA entirely and attempted to extort the county into agreeing to increase water exports. In the early 2000’s DWP informed Inyo that it would not agree to a long term lease for the Bishop airport unless the county agreed to increased water exports. In this case, Inyo Supervisors did not acquiesce and the county lost a $2,000,000 grant (which had been contingent upon having a long term lease). The extortion continued until a new mayor was elected in Los Angeles and new members of the Board of Water and Power Commissioners appointed.
The Standing Committee has tried another approach to “joint management.” Both Inyo and DWP wish to modify the LTWA’s “on/off” groundwater management protocol but disagree on how it should be modified. When Inyo was developing a proposed replacement in 2005, DWP proposed that the parties work together. The Standing Committee then agreed in 2007 to sponsor a three-year facilitated process for DWP and Inyo staff to work together to revise not only the “on/off” protocol, but the entire technical appendix to the LTWA.
Nine years later (in 2015), the facilitator is long gone, and no agreement has been reached on any changes to the LTWA technical appendix.
Perhaps the most compelling example of the failure of joint management is the list of mitigation projects and their current status, found in any of Inyo County Water Departments’ annual reports. As of 2015 (24 years after the signing of the LTWA) only half of the ~50 mitigation projects called for in the LTWA/EIR/MOU had been successfully implemented.
It is easier for Inyo to acquiesce to DWP’s failure to honor all its obligations in the LTWA than to constantly challenge them. This is for the reality of “joint management.”