Colonial Rule
It is no exaggeration to say Owens Valley is a colony of Los Angeles. The city owns nearly all land on the floor of Owens Valley and claims virtually all water rights. Owens Valley residents cannot vote in Los Angeles elections so there are no elected officials in Los Angeles accountable to Owens Valley voters. With no representation in Los Angeles the checks and balances which characterize government everywhere else in the United States are non-existent with regard to management of DWP land in Owens Valley.
Since the end of Word War II most (if not all) colonies in the world have obtained independence – except Owens Valley. In fact, Los Angeles continues to aggressively pursue the purchase of any and all remaining land on the valley floor it doesn’t already own. It is hard for people who live in areas of self-determination (i.e. the rest of the US) to realize what it means to live in a colony. A few examples:
When DWP first proposed (in 2013) to build a two square mile industrial-scale solar energy facility in the middle of one of the most scenic and historic parts of the valley, residents pointed out that this was inconsistent with county zoning. County leaders explained to residents that DWP was not bound to comply with county zoning for this project.
Residents sought in 2012 to buy or lease a historic building on land DWP had acquired in Independence. The entire business district (including this building) of Independence had been recommended for listing in the National Register of Historic Places. DWP demolished the building at 4:00 am one morning. It never obtained a demolition permit from Inyo County and subsequently denied any obligation to have done so.
The airport for the largest Owens Valley town (Bishop) lies on DWP land. In the early 2000’s DWP informed Inyo that it would not agree to a long term lease for the Bishop airport until the county agreed to increased water exports. Because Inyo Supervisors did not acquiesce, DWP didn’t grant the lease and the county lost a $2,000,000 FAA grant which had been contingent upon having a long term lease. The extortion continued for years, ending only when a new Los Angeles mayor was elected who appointed new members to the LA Board of Water and Power Commissioners.
The Bishop airport is the tip of the iceberg: cemeteries, city parks, county campgrounds, and garbage dumps are all on DWP-owned land. Lease terms (and the implicit threat to change them) thus give tremendous power to DWP over Inyo County officials. In one case a rancher, not getting the irrigation water from DWP guaranteed in the LTWA, asked Inyo County to enforce the LTWA. The county attorney replied that the county would not get involved in a dispute over a DWP lease.
Acquiescence is much easier and less stressful than resistance to DWP. Inyo political leaders repeatedly emphasize the need to “cooperate” and rarely use the phrase “protect the county’s interest.” Bishop Mayor Kathy Henderson commented in 2005, “I don’t want to be put in a position where I have to take sides. I have to work closely with DWP.” The sentiment expressed is shared by virtually every county political leader.
Los Angeles has used its power in the California Legislature to reinforce its colonial rule. When DWP decided to buy up Owens Valley towns in the 1930’s the California legislature passed special legislation allowing one incorporated community to purchase another. The state constitution was amended in 1968 to minimize the ability of Inyo County to tax LA’s land in the county.
Los Angeles’s rule of Owens Valley brings to mind the aphorism, “all power corrupts; absolute power corrupts absolutely.” Notwithstanding its rhetoric about protecting the Owens Valley environment and honoring its obligations under the LTWA, the absolute power of colonial rule is an irresistible temptation for bullying and extortion. While the case of the airport lease (cited above) has been resolved, there is nothing to prevent DWP from engaging in similar extortion whenever it wishes.
18th century American colonists had rights as subjects of the British Crown. 21st century Owens Valley colonists have no rights in Los Angeles at all. “No taxation without representation” was a rallying cry in the American Revolution. “De-hydration without representation” has been occurring in Owens Valley for over a century.
In 2014 California passed a law regulating groundwater. It was intended to foster local control of groundwater resources and was based on the concept of “safe yield.”
Given the colonial status of Owens Valley, it might be thought that this new law would have been welcomed in Owens Valley as a way to weaken DWP’s control. To the contrary, DWP and Inyo county staff negotiated with the groundwater law’s sponsors in the legislature to add (at the last minute) an exemption for DWP land in Inyo County. The legislature passed the bill, with the exemption, before County Supervisors and the public had any chance to discuss the exemption at all.
Assuming the exemption is implemented, groundwater will continue to be managed under terms of the 1991 Inyo-LA Long Term Water Agreement (LTWA). While the overall goals of the LTWA sound reasonable (i.e. to “avoid” creating significant impacts while providing a “reliable” supply of water), there are crippling flaws in its groundwater management protocol which prevent the goal of impact avoidance from being attained.
The concept on which LTWA groundwater management is based is simple: rotational pumping. At any given time pumping would be allowed in some areas to create water table draw-downs, while pumping elsewhere would be curtailed to allow water table recovery. By carefully rotating areas of drawdown and areas of recovery, it would be, in theory, possible to “avoid” creating any further significant environmental impacts and also provide a “reliable” supply of water. Wellfield vegetation (an indicator of wellfield ecosystem conditions) was thought to be “drought hardy,” meaning it could tolerate cycles of water table drawdown and recovery
Unfortunately, the concept is not being successfully applied.
The protocol by which wells are turned on and off, (aka the “on/off protocol”) has proven to be ineffective in implementing rotational pumping. It is ineffective for several reasons.
First, because approximately one-third of DWP’s wells –including several of the largest in the valley–have been exempted from the protocol or are simply not linked to on/off monitoring sites. This means many wells are never rotated out of production, and some are actually operated continuously, year-round. Anywhere from 70% to 100% of pumping in any given year usually comes from exempt or un-linked wells. As a result there are areas of permanent water table draw-downs which are never allowed to recover. In 2006 Inyo County Water Department Director Tom Brooks told Inyo County Supervisors, “We cannot pretend managing 20-25 percent of pumping is really managing the resource.” Nine years later (in 2015) the problem as worsened, as even more exemptions have been granted.
Another problem is that the on/off protocol is not based on direct measurement of water table depth. Instead, water availability is based on a complicated calculation of soil water measured at several different depths. Relatively high precipitation in a given year may thus turn a given well to “on” status even though the water table may be deeply drawn-down. If the following year is dry, the pump my go off, but water table recovery is not instantaneous and plants will be denied access to shallow groundwater when they need it most.
A similar problem pertains to the vegetation water requirements used in on/off calculations. The LTWA goal is to manage pumping so as to avoid vegetation impacts relative to conditions as measured in 1984-87 (the “baseline period”), when DWP inventoried all its holdings and developed quantitative estimates of percent cover and species composition. On/off water requirements are based on measurements of current vegetation conditions at monitoring sites—not the water requirements of vegetation as measured in the 1984-1987 baseline period. Had on/off been implemented as soon as baseline conditions had been measured, it might have had a chance of success. Unfortunately, it was not implemented until several years of drought in conjunction with record high levels of pumping had dramatically lowered water tables and seriously reduced vegetation cover below baseline. The protocol was not designed to raise cover, but to keep it from declining. Were on/off based on estimated water requirements of baseline vegetation the protocol would have been much more effective at raising vegetation cover to baseline conditions.
Apart from poor vegetation conditions, the clearest evidence of the failure of on/off is seen in valleywide pumping totals. According to the USGS, long term average pumping should not exceed ~70,000 acre feet per year (excluding artesian flows) if water tables are to remain high enough to meet LTWA goals of impact avoidance. However, DWP reports its actual long term average pumping to be almost 90,000 af/yr.
One reason long term average pumping is too high is because, on any given year, the on/off protocol permits far more than 70,000 af of pumping. For example, according to DWP, in 2011, (the last year before the current drought), on/off allowed pumping 197,284 af of water. Even during the four years of the current (as of 2015) record-breaking drought the average allowable pumping has been 133,357 af/yr, a volume almost 50% greater than the USGS ceiling of 70,000 af/yr. On/Off permits so much pumping DWP doesn’t pump all it is allowed. This lets the agency claim it is pumping “conservatively” and complying with the LTWA because it is pumping far less than is allowable, even while it pumps far more than it should were it seriously trying to avoid impacts.
A final problem with the on/off protocol is that it favors deep-rooted shrubs over meadow grasses. Most DWP pumping is in areas of (formerly) shallow groundwater (formerly) dominated by groundwater-dependent grasses (aka “alkali meadows”). As water tables are drawn-down due to pumping, grasses experience water stress before invasive shrubs, because the shrubs typically have deeper roots. Likewise, shrubs recover from water stress in a period of rising water tables before grasses, due to the shrubs’ deeper roots. This potential for conversion from grass to shrub dominance was recognized as a potential problem with rotational pumping when the LTWA was negotiated and vegetation monitoring data provide clear evidence it is occurring.
In 2005 Inyo County Water Department began developing a replacement for on/off based on direct management of groundwater. This led to the 2007 decision by the Inyo-LA-Standing Committee to initiate a joint Inyo-DWP facilitated process for revising the on/off protocol and the entire technical appendix to the LTWA. The process was to last three years – far longer than the two months it took to write the original LTWA technical appendix. The revision process is now in its ninth year with no results. Without court involvement there is no reason to believe agreement will ever be reached.
Why is groundwater important?
Three of the many reasons why groundwater is important are: 1) to sustain biodiversity; 2) to preserve beauty; and 3) to support economic activities in the form of livestock grazing and tourism. When Euro-Americans first saw the valley, they marveled at beautiful extensive meadows, and diverse wildlife habitats all sustained by surface water and shallow groundwater. Under current management, wellfields are becoming steadily drier, less diverse, browner, dustier and uglier.
A better way to implement GroundWater based Management is contained in this presentation:
WaterTableBasedManagement&SGMA
Related links to the old OVC website
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.”
The Inyo-LA Long Term Water Agreement (LTWA) and associated EIR and MOU call for numerous projects to mitigate impacts of DWP’s water gathering activities during the 19 years of litigation leading to the LTWA. According to Inyo County Water Department’s (ICWD’s) 2013-2014 Annual Report, there are approximately 49 mitigation projects. Of these, 26 have been implemented with reasonable success, while the rest all have various problems, and some have not even been started.
Of particular concern is the mitigation requirement that “stands of tree willows and cottonwoods” (EIR, pg. S-6) will be monitored. As of 2015, twenty-four years after the signing of the LTWA, the Technical Group has never even agreed on where all the stands of tree willows and cottonwoods are (were, because many have now died), much less developed a monitoring protocol to insure they are not impacted by water management.
Some of the projects were nonsensical to begin with. For example, three mitigation projects cause the impacts they are mitigating. These projects involve pumping particular wells which dry up springs, whose drying the pumping is supposed to mitigate (of course, the rate of pumping exceeds the rate at which the springs previously flowed).
About 1300 acres of land are designated for mitigation in the form of re-vegetation projects. Most these simply call for trying to establish a low cover of upland species in areas formerly occupied by high-cover groundwater-dependent meadows. The idea that this is biologically meaningful “mitigation” is laughable. And in several large areas even this meaningless “mitigation” is failing badly.
Reading the table of mitigation projects in the Inyo County Water Department’s annual report is a good way to get an idea of how much damage DWP has done to Owens Valley. The fact that so many of these projects – biologically questionable to begin with — haven’t even been successfully implemented is compelling evidence of the failure of the LTWA.
The single largest and most important mitigation is the Lower Owens River Project (LORP). Because the project is addressed in the MOU – as well as the LTWA/EIR – OVC has had legal standing to enforce its implementation. Because DWP failed to meet project deadlines while trying to change critical features of the project it took three lawsuits by OVC and the Sierra Club to finally get the LORP implemented according to the intent of the LTWA and MOU.
For mitigation projects DWP has yet to complete, it has unilaterally decreed a “water neutrality” policy. This means if DWP must use water for a mitigation project in the valley, it insists it be allowed to gather more water (typically by getting an exemption from the on/off protocol) so its exports will not be affected. This policy is not in the LTWA/EIR/MOU, yet Inyo has repeatedly acquiesced to DWP’s imposition of it.
The Big Pine re-greening project is a notable example. The Inyo County Water Department supported DWP’s demand for an exemption and rationalized its support by ignoring cumulative valley-wide impacts of DWP’s already-excessive exempt-well pumping. It also ignored any discussion of the justice – or lack thereof — of the concept of exemption in the name of mitigation
When DWP requires an exemption as a condition for mitigation, it, in effect, makes the victim compensate the perpetrator of the (environmental) crime. A basic concept in US environmental law is “the polluter pays”. Here, the perpetrator of the environmental impact (DWP) pays, but gets reimbursed by the victim (Inyo) in the form of a well exemption. This stands justice on its head and makes a joke of the entire concept of mitigation.
The DWP and Inyo County Water Department have released these tables of Mitigation Projects that still need completion. Areas where there are disagreements are marked by where Inyo County or the DWP feels that particular project is on meeting goals. There is some disagreement from the public about where some of these mitigation projects completion. Here are the tables:
Extensive open space is one of the most striking features of Owens Valley. Unobstructed views of the Sierra Nevada escarpment and the White/Inyo Mountains from the valley floor enhance the quality of life for residents and delight tourists from all over the world. The scenery helps drive the county’s recreation-based economy.
Historically, DWP has taken credit for preserving this open space. Former LA Water and Power Commissioner and water activist Dorothy Green wrote, “Most residents of these Eastern Sierra communities are grateful to DWP for purchasing the land in the region. There is very little development and no billboards on Highway 395” (Managing Water, UC Press, pg 34) According to DWP, “The Owens Valley remains one of the last areas in California that is virtually untouched by pollution and development precisely because of the LADWP’s excellent land stewardship.” Whether preventing development alone constitutes “excellent land stewardship” is debatable, but DWP equates the two. In fact, DWP has expanded open space by systematically destroying houses and ranch buildings on property it has acquired up and down the valley.
Preservation of open space is the basis of DWP’s defense of its entire Owens Valley enterprise. While the environmental devastation of its de-watering of the valley is well-documented, DWP has great success in the court of public opinion by frightening people over what would happen if it left the valley. “If it weren’t for DWP this place would look like [name an ugly suburban area]” is the most frequently heard rationalization among Owens Valley residents for acquiescence to DWP.
The zenith of DWP’s efforts to protect open space came in 2004. DWP proposed to protect its non-urban land by establishing conservation easements on it. Local ranchers and political leaders were caught by surprise, opposed the proposal, and it was never adopted.
Given the great political value of its open space preservation, it was surprising to see how easily DWP reversed its policy. As recently as 2006 both the DWP general manager and a member of the Board of Water and Power Commissioners assured Owens Valley residents that DWP had no interest in developing its lands in the valley. In 2013, with a new mayor and new DWP director, protection of open space was forgotten as DWP proposed constructing a two-square mile industrial-scale solar energy facility (the Southern Owens Valley Solar Ranch aka SOVSR) in one of the most historic and scenic parts of the valley. So much for preventing development and “excellent land stewardship!”
To buy Inyo County’s support, DWP and Inyo staff agreed on a “term sheet” in which Inyo County would be paid $4,000,000.00 by DWP provided it agreed not to challenge the project’s EIR. Inyo Supervisors were ready to accept this, but were surprised by overwhelming opposition among their constituents.
While resistance to DWP’s ongoing desertification of the valley is often ineffectual, this threat to open space generated powerful and widespread opposition not seen in the valley in decades. OVC helped lead this fight. Working in conjunction with the Manzanar Committee – a political force in Los Angeles — and local tribes, we were able to persuade DWP to postpone further consideration until the mid 2020’s.
According to the Inyo County Planning Department, Owens Valley has the potential to be the “Saudi Arabia of solar energy.” DWP is not the only utility to recognize this. While fighting off DWP’s proposal, OVC successfully opposed another proposed solar photo-voltaic project on private property in the middle of the valley close to the proposed SOVSR site.
At this point, the only protection for open space on DWP land is DWP’s Owens Valley Land Management Plan (LMP). This was a mitigation measure in the 1997 MOU to the 1991 LTWA/EIR. The LMP “will provide for the continuation of sustainable uses (including recreation, livestock grazing, agriculture, and other activities) will promote biodiversity and a healthy ecosystem, and will consider the enhancement of Threatened and Endangered Species habitats.” OVC is a party to the MOU and will continue to insist that the goals of the LMP be honored.
As of 2015 the Inyo County Planning Department seems to be the greatest threat to open space. In the name of protecting the valley from inappropriate development, the Planning Department continues to propose modifications to the Inyo County General Plan which would open up large parts of Owens Valley to industrial-scale solar projects.
Los Angeles diverted Owens River into the LA Aqueduct in 1913, and by 1924 Owens Lake (formerly supplied by Owens River) was dry. By the mid 1990’s the approximately 110 square mile lake bed had become the largest single source of PM10 Particle Matter pollution in the country.
California lawmakers established the Great Basin Unified Air Pollution Control District (GBUAPCD) in1974 to enforce federal, state and local air quality regulations and insure air quality standards are met. In 1983, the California legislature passed SB 270, codified as section 42316 of the California Health and Safety Code, which gave GBUAPCD authority to undertake reasonable measures to mitigate dust and recover costs from the Los Angeles Department of Water and Power (LADWP).
In 1998, under intense political pressure, LADWP and GBUAPCD signed a State Implementation Plan (SIP) setting forth how LADWP would mitigate dust. Another SIP, amendments to the SIPs and legal challenges by LADWP followed. State courts consistently rejected LADWP’s various challenges and upheld GBUAPCD’s enforcement orders. Although Owens Lake is, ecologically, an integral feature of the Owens watershed, dust mitigation at the lake is not required under the Inyo LA Long Term Water Agreement.
GBUAPCD initially approved three dust mitigation techniques: shallow flooding, managed vegetation (i.e. growing saltgrass), and spreading gravel. DWP was free to decide which method to use on any portion of the lake bed. DWP found that the least expensive alternative was shallow flooding, and used that technique for most of the area it was required to mitigate.
As a by-product of shallow flooding, DWP created large areas of shorebird and waterfowl habitat. It also demonstrated that it could greatly reduce its dependence on Owens Valley water – at least 75,000 acre feet/yr of water which otherwise would have been exported to Los Angeles was allowed to reach the lake.
After several changes in DWP and LA administrations (and much litigation), DWP managed to persuade GBUAPCD to approve a fourth mitigation method: cycles of shallow flooding followed by drying and bulldozing. DWP is now converting areas of shallow flooding to the new technique in the name of “conservation”.
This is not the first time DWP has invoked “water conservation” to justify a project to increase its exports. If increasing water exports is water conservation, we must recognize DWP as one of the greatest conservation organizations in the world!
DWP is thus increasing its dependence on Owens Valley water even as Mayor Garcetti is calling for “sustainability” and seeking to “reduce the amount of imported water used by Angelenos”. The billions of dollars DWP will have to spend on endless bulldozing and manipulation of the bed of Owens Lake could be put to much better use invested in water recycling in Los Angeles, thereby reducing the city’s dependence on Owens Valley water. The most cost-effective way to mitigate dust would be to let the lake fill as Los Angeles overcomes its addiction to imported water.
One of the main points of contention in the 19 years of litigation leading to the 1991 Inyo-LA Long Term Water Agreement (LTWA) was how much land DWP would irrigate. DWP had already dried up thousands of acres of irrigated land since the early 1900’s and Inyo County wanted to protect what remained of its agricultural economy.
The LTWA requires DWP to continue “past practices” with regard to all surface water flows. It further states DWP is required to provide sufficient water to irrigators so they can “continue water-related uses” as they did in 1982. The Agreement also states that the Standing Committee may agree to reduce irrigation in drought years. Inyo County and DWP jointly comprise the Standing Committee, which means DWP cannot unilaterally reduce irrigation.
The Inyo County Water Department, which has spent large amounts of time and energy monitoring vegetation in wellfields, makes no effort (as of 2015) to monitor how much water DWP provides for irrigation. The Water Department reasons that irrigators themselves pay close attention to this.
Most irrigators do, in fact, pay close attention and know when they are not receiving the water to which they are entitled. Unfortunately, most irrigators have short term DWP leases, and fear if they complain publically about insufficient water they may have difficulty renewing their leases.
As of 2015 there are two well-documented cases of lessees being denied irrigation water. Neither Inyo County nor DWP has made any effort to solve these problems. There are many more complaints made in private about irrigation reductions, but most irrigators are afraid to seek redress by publicly insisting DWP comply with the terms of the LTWA.
In 2005 DWP attempted to bribe irrigators to use less water. It offered to finance sprinkler irrigation systems if irrigators would accept a reduced volume of irrigation water, thereby allowing DWP to export more water down the aqueduct. DWP called this “water conservation.” Inyo County objected and the disagreement was never resolved.
In 2014 DWP changed the terms of its standard lease to include stockwater in the total amount of water provided for irrigation. Historically, stock water had been a separate item. This had the effect of reducing the amount of water available to each lease, in obvious violation of the LTWA. Inyo County wrote a letter of objection but no DWP response has ever been released to the public. The Owens Valley Committee asked Inyo Supervisors to agendize a discussion of this issue in spring 2014 but Inyo Supervisors never responded.
In late April 2015, DWP informed lessees it planned to discontinue supplying all irrigation water as of May 1, 2015 notwithstanding the fact that it had more than enough water stored in Long Valley Reservoir to supply its 2015 irrigation obligations. Inyo County threatened to seek an injunction and DWP rescinded its decision. For the remainder of the 2015-2016 irrigation season the Standing Committee made a series of month-by-month decisions to continue supplying irrigation water, though it has yet to be determined exactly how much water was supplied.
Surface water for certain “enhancement-mitigation” projects is another area of contention. Some projects are supplied by wells. Because DWP pumps so much groundwater, some of these wells go into “off” status under the on/off protocol. This requires DWP to supply the projects with surface water. DWP tracks the volume of surface water and claim Inyo “owes” this volume of water to DWP. DWP’s claim is not based on anything in the LTWA and is not recognized by Inyo. However, each year the volume DWP claims it is “owed” increases, and DWP has threatened to initiate a formal dispute over the issue.
The volume of water DWP claims to be “owed” is best understood as one more measure of DWP’s excessive pumping. The reason pumps go into off status is because DWP chooses to pump excessively. Until DWP reduces its pumping on a valley-wide scale and allows much more water table recovery, wells will continue to be in “off” status and DWP will have to continue to use surface water for some mitigation projects.
The Inyo-LA Long Term Water Agreement (LTWA) doesn’t guarantee DWP a minimum volume of pumping, nor does it set a pumping ceiling. DWP is allowed to pump every drop it can, provided it complies with its obligation to “avoid” certain impacts to vegetation relative to conditions as measured by DWP in the mid-1980’s (aka “baseline conditions”).
How is it determined whether pumping is in compliance with the impact avoidance requirement? This has been a subject of much contention between DWP and Inyo County and is at the heart of the failure of the LTWA.
One way to meet the legal requirement to avoid impacts is to manage pumping according to the “on/off” protocol. This protocol is based on a feedback loop. Decisions about pumping any given set of wells are based on measurements of vegetation cover and soil water availability at an associated monitoring site. The details are complicated, (and skewed toward leaving wells on) but the basic concept is comparing measured soil water with estimated vegetation water requirements. If soil water exceeds the estimated vegetation water requirements, wells go on. If not, wells go off. Wells may go on again only after soil moisture increases to the amount required by vegetation at the time the wells went off – not by the amount required to sustain baseline vegetation conditions. Pumping is directly linked to conditions of wellfield vegetation, a dramatic change from previous protocols (during the 19 years of litigation leading to the LTWA) in which pumping was controlled in relation to ranges of annual runoff.
Unfortunately, the on/off protocol has proven ineffective at meeting its goal avoiding impacts to vegetation relative to baseline (1984-1987) conditions. DWP claims – correctly – that it complies with the on/off protocol, yet vegetation and water table monitoring data show clearly that precisely the impacts LTWA management is intended to avoid are, in fact, occurring in some areas. See the groundwater management discussion for more information about the failure of the on/off protocol.
Another way to determine if impacts are being avoided is by sampling vegetation throughout wellfields (instead of just at the 33 permanent monitoring sites used for the on/off determinations) and comparing current conditions with those of the baseline period. The Technical Appendix to the LTWA includes a protocol for random sampling of vegetation parcels to allow for comparison with baseline conditions. If current conditions have not declined relative to baseline, and/or trends suggest conditions are stable it is evidence impacts are being avoided.
Inyo County began implementing the random sampling protocol on behalf of the Technical Group in 1991. By the early 2000’s results showed vegetation conditions in certain parcels were consistently below those measured in the baseline period and that the changes were precisely those DWP had predicted as responses to prolonged water table drawdowns. Furthermore, test well data showed water tables under these parcels had usually been drawn-down below the grass rooting zone since the late 1980’s, when the LTWA was being negotiated.
Inyo County took these monitoring data as evidence that current management was not consistent with the goal of impact avoidance and challenged DWP’s 2000 annual pumping program. Inyo argued proposed pumping was too high and cited vegetation monitoring data as well as depth-to-water data to support its complaint. In its response, DWP disavowed the entire LTWA vegetation parcel monitoring protocol (which had been used by Inyo). It treated Inyo’s complaint as a failed attempt to seek mitigation and acknowledged no obligation to avoid impacts at all. The arbitrators refused to make a ruling and sent the case back to the Technical Group. Inyo County then appealed to Inyo Superior Court and the judge, too, sent the case back to the Technical Group. Inyo did not pursue the complaint further.
In 2001 Inyo again challenged DWP’s annual pumping program. Inyo again cited vegetation monitoring and depth-to-water data to support its complaint. DWP again made no reference to any obligation to avoid impacts and disputed Inyo’s right to challenge its pumping program. This time the arbitrator, in effect, split the difference between DWP’s proposed pumping and Inyo’s alternative. Legal documents for both the 2000 and 2001 disputes are no longer online, but are available at the Inyo County Water Department.
DWP then undertook a campaign to defend its management in the court of public opinion. In 2004 DWP general manager Gerry Gewe explained, “Some of the environmental interests up in Owens Valley would suggest that we have substantially changed the habitat up there. Our scientists would say it’s within the spectrum of what would change with the normal variation. I don’t know that anyone will ever come up with a clearly definable answer to that…” The self-serving nature of this statement is unmistakable. If “no one can ever come up with” the difference between natural variation and pumping impacts, DWP can never be shown to have created any further pumping impacts and be liable for mitigation. In signing the LTWA DWP implicitly admitted its pumping had, previously, created significant impacts; this belies the assertion it is impossible to distinguish pumping impacts from “normal variation”.
In 2005 DWP consultants produced a set of three reports presented to the public as disinterested analysis (“The Science Behind Managing Natural Resources in Owens Valley”) but better described as advocacy. The consultants also gave public presentations, which culminated in OVC sponsoring a public meeting to rebut the misinformation of the DWP consultants. At the OVC meeting, DWP’s Brian Tillemans asserted that DWP’s 1984-87 vegetation inventory, written into the Water Agreement (Technical Appendix) as the baseline against which vegetation change would be measured, was not suitable for statistical analysis and that it was not even “a scientific, precise study or documentation of vegetation.” Needless to say, if baseline data are not reliable, DWP can never be shown to have created new pumping impacts. However, don’t doubt DWP’s good intentions! At the same meeting DWP manager Gene Coufal explained, “[impact] avoidance, we do take it seriously…we just don’t know where avoidance is.”
By 2007, conditions at one parcel (Blackrock 94) were so bad, according to monitoring data gathered under the LTWA protocol, that the Bristlecone Chapter of the California Native Plant Society wrote a formal letter requesting reduction of pumping so significant impacts would be “avoided”. This led (several years later) for Inyo to initiate a formal challenge to the 2011 pumping program, which eventually morphed into two separate disputes, not over modifying management to “avoid impacts” but over whether mitigation after-the-fact was needed. In 2014 DWP and Inyo finally reached a settlement in which pumping has been slightly curtailed in the area of Blackrock 94.
As part of the Blackrock 94 settlement, the Ecological Society of America was awarded a contract to provide facilitation and a panel of experts to help resolve disagreements about vegetation monitoring.
As of 2015, over 20 years after the LTWA was signed, there is no agreement between DWP and Inyo on how to monitor vegetation, nor is there agreement on how monitoring data should be compared with baseline data to identify significant impacts. One lesson is clear: framing of LTWA vegetation management goals in the negative (“avoid certain described changes…” was a mistake. With no affirmative criteria for defining success it has not been difficult for DWP to render the impact avoidance goal meaningless.
— Daniel Pritchett
The numerous problems with LTWA management (discussed in the issues pages) raise the question of why Inyo County residents aren’t taking more aggressive action to protect the valley. Historically, residents have tried everything from civil disobedience (the occupation of the Alabama Gates) to violence (dynamiting the aqueduct) to litigation. Since the 1991 signing of the LTWA, the county has largely acquiesced to DWP save for occasional blustering and challenges to DWP’s annual pumping programs in 2000, 2001 and 2007.
The most frequent rationalization among residents for acquiescence to DWP is, “this place would look like [name the ugliest developed area you can think of] if it weren’t for DWP.” Gratitude for being able to live in an area largely devoid of urban sprawl outweighs indignation at the injustice of colonial rule, the drying of Owens Lake and all the major springs in the valley, and the ever-increasing desertification of wellfields.
DWP has, indisputably, protected open space (and even enlarged it through destruction of historic buildings on property it acquires). However, the fact that DWP has protected open space up to the present does not guarantee it will do so in the future: consider DWP’s proposed Southern Owens Valley Solar Ranch. Nor is DWP colonial rule the only way to protect open space. The possibility of a DWP-free future, in which open space is protected and the valley re-hydrates never gets discussed. Nor does the idea that settling for anything less than such a future may be selling the valley short. The “This place would look like…” rationalization seems to be an example of the “Stockholm Syndrome” – captives identifying with their captors — on a grand scale.
This rationalization has interesting implications because it is an implicit acceptance of DWP’s narrative that DWP is not the destroyer, but the savior of the valley. While the notion of DWP as savior may be preposterous, DWP promotes it vigorously, claiming the valley is a “pristine landscape”, and “without Los Angeles’ land ownership developers would long ago have begun converting large tracts of Owens Valley land into housing, businesses, and industrial facilities.” As a result, many residents have cognitive dissonance regarding the valley and its future. Evidence of DWP’s devastating dehydration of the valley cannot be denied but, in accepting the “This place would look like…” rationalization they nevertheless accept DWP’s narrative of salvation.
Environmentalists seem particularly vulnerable to this narrative. Prominent water activist Dorothy Green wrote, in 2007, “Most residents of these Eastern Sierra Communities are grateful to DWP for purchasing the land in the region. There is very little development and no billboards on Highway 395” (Managing Water, UC Press, pg 34). In 1976 the chairman of the Eastern Sierra Task Force of the Sierra Club said “We recognize that Los Angeles is probably the savior of the valley.” (National Geographic Magazine, January 1976).
William Kahrl responded to the Sierra Club statement, “These remarks reveal the danger in confusing effects with motivation. By the logic of this Sierra Club spokesman, so might Genghis Kahn be admired today as an early advocate of open space preservation for his work in obliterating the cities of central Asia. The conservationists’ accolades for Los Angeles ignored the essential fact that the city’s interest was not in the preservation of the environment in any general sense but in the protection of its water resource.” (Kahrl, William 1982. Water and Power, University of California Press. pg. 400).
Among DWP staff, the “DWP as savior of the valley” narrative is deeply held, and some take it one step farther. If one accepts the notion of DWP as savior of Owens Valley, the fact that DWP has been widely condemned for its Owens Valley activities means it is a victim, as well as a savior. Indeed, to hear some tell it, DWP is virtually a martyr! Kathleen Mulholland (William’s granddaughter) writes, “What, after all, made this venture [LA’s conquest of Owens Valley] more reprehensible than those undertaken by other American cities that had gone distances to find water: New York to Croton, Boston to Quabbin Reservoir, and San Francisco to the Tuolomne River…? Who still rails against the New York Catskill project…?” (William Mulholland and the rise of Los Angeles, University of California Press, pg. xv). Poor, victimized Los Angeles!
There are thus competing narratives of salvation and victimhood regarding DWP and the valley: 1) Owens Valley is the victim (of DWP); 2) DWP is the victim (of hatred by ungrateful OV residents and misplaced sympathy for the underdog among outsiders); and 3) DWP is the savior (of Owens Valley). The unending contention among these narratives in the court of public opinion is a constant background to political discussion in the valley.
The contention occasionally comes to a head. In October 2005 the Bishop Mural Society unveiled a mural on a Bishop building which addressed Owens Valley history. Had the artist intended to inflame passions, he could have depicted DWP bulldozing farmhouses on the land it acquired and dried up, or Owens Valley residents dynamiting the aqueduct. Instead, the mural shows the Bishop area Sierra crest, a grassy meadow, a small orchard, a creek, and a DWP drainpipe surrounded by an area where the paint appears to have fallen off exposing the underlying pencil sketch. Only upon seeing the very small “LADWP” on the drainpipe does the historic narrative of DWP’s draining of the valley start to become clear. The overall effect is pastoral and understated.
DWP’s response was anything but understated. After the mural’s unveiling, the wife of the local DWP manager reportedly threatened the tenant of the building (who had nothing to do with the mural) with a DWP boycott of her store. The DWP manager then wrote a letter to the mural society (with copies to county political leaders) claiming the mural presented a “false and negative depiction” of LA ownership, that DWP was “deeply offended” (DWP as victim), and Owens Valley is, “one of the last areas in California virtually untouched by development and pollution precisely because of DWP’s excellent land stewardship” (DWP as savior). He also withdrew a $500 donation DWP had made to the mural society and wrote that DWP would scrutinize funding requests much more closely in the future. The letter was so intemperate it generated national publicity and became an embarrassment to the Mayor of Los Angeles who subsequently ordered the $500 donation to be re-donated.
The mural also generated noteworthy discussion in the letters-to-the-editor of the Inyo Register. One author invoked Shakespeare (“methinks he doth protest too much”) to argue the vehemence of the DWP letter was a manifestation of the guilty consciences of DWP staff. A DWP employee replied with more invocations of DWP as savior and victim.
The DWP responses to the Mural were enlightening precisely because they were not calculated responses of a public relations expert, but, instead, very personal reactions. As such they provided a window into the self-deception prevalent among DWP staff. The success DWP has had in promulgating its narrative of salvation (among the public, as well as its staff) is the best explanation for the reluctance of Owens Valley residents to seek alternatives to DWP rule. This reluctance is the biggest single obstacle (apart from DWP itself) to a better future for Owens Valley.
— Daniel Pritchett