CEQA and the Restoration of Mono Lake

An Excerpt from Everyday Heroes

By: Richard Roos-Collins

In the Mono Lake Cases, the State of California Water Resources Control Board limited municipal water rights in order to preserve and restore Mono Lake and its tributary streams. Decision 1631 (1994) ended more than fifteen years of litigation in federal and state courts over the novel legal issue: may the Water Board reopen valid water rights under authority of the public trust doctrine, and if so, how should municipal water supply be protected along with environmental quality? The Water Board prepared an Environmental Impact Report (EIR) under CEQA, and that systematic factual analysis of alternatives helped drive the Water Board’s eventual decision.

In 1940, Los Angeles Department of Water and Power (LADWP) applied to the Water Board and obtained permits to divert waters from four streams tributary to Mono Lake, a desert lake just east of Yosemite National Park. Since local streams and aquifers were inadequate for the rapidly growing population of the Los Angeles Basin, LADWP looked several hundred miles north to the Owens and Mono Basins, rural areas with abundant waters and sparse populations, for additional supply. Though the Water Board found that the requested diversions—which would exceed natural stream flows in most months—would damage environmental quality, it regretfully issued the permits. Since municipal water supply is the highest and best use of water recognized under the State Constitution and Water Code, it concluded that it did not have any authority to require mitigation (such as a minimum flow release) in the face of LADWP’s legitimate needs.

LADWP rapidly completed the storage and diversion system on these streams, as well as the Los Angeles Aqueduct to deliver these waters to the Los Angeles Basin. In 1974, these permits became licenses, which are vested water rights. As a result of these diversions, the streams lost their flows in most months, along with their fisheries and riparian vegetation; and the lake declined more than forty-five feet in elevation.

In 1979, the Mono Lake Committee sued against LADWP to compel water releases into Mono Lake. It cited the public trust doctrine. This common law had originated in Imperial Rome, been adopted in England during its Roman occupation, then migrated to our Colonies along with the English settlers before the Declaration of Independence. The common law, which now applies in all fifty states, generally provides that a State must protect fishing, navigation, and commerce on navigable waters as a public trust. In 1983 the California Supreme Court held for the first time that the Water Board must consider the public trust before issuing water rights—and indeed may reopen rights issued without such consideration—and must protect the trust uses to the extent feasible consistent with municipal water supply and other beneficial uses. California Trout and the Mono Lake Committee then successfully brought other cases under the Fish and Game Code, seeking similar results for protection of the nonnavigable tributary streams. In 1989, the Court of Appeal ordered the Water Board to amend LADWP’s water rights to protect Mono Lake and its tributaries to comply with all applicable laws.

The hearing lasted forty days, one of the longest in the history of the Water Board. More than 125 experts testified, and the parties submitted more than 1,000 exhibits. The hearing record alone fills several filing cabinets. The EIR addressed a multitude of factual disputes framed but not necessarily resolved by this partisan evidence.

In sum, the EIR answered the question: what is the most feasible means to restore Mono Lake while protecting LADWP’s reliable and economical water supply?

The State Water Board prepared the EIR in a collaborative manner. It convened technical advisory groups to frame issues and sort through the library of scientific and other studies compiled since the Mono Lake Cases began. All parties participated in some way in these groups. To prepare the actual EIR, the Water Board engaged and supervised a consulting firm, under a contract paid-for by LADWP. The consultant undertook new studies as necessary to supplement the existing information.

The resulting EIR is a systematic analysis of how LADWP’s diversions had lowered the lake level and degraded environmental conditions that had existed in the Mono Basin in 1940. It predicted that the trend will continue, in the absence of amendment to water rights. The analysis differentiated impacts by resource, including migratory waterfowl, trout, brine shrimp, and air quality. More importantly, it evaluated a series of alternative scenarios for lake level: how much should the lake rise towards its pre-1940 condition, which was elevation 6,417 Mean Sea Level (MSL)? These scenarios assumed increasingly strict limitations on LADWP’s diversions. The EIR evaluated the municipal impacts of these alternatives—what is the incremental risk of supply shortage, taking into account all of LADWP’s sources?—and the feasibility of replacement supply, such as reclamation of municipal wastewater.

The final EIR recommended the alternative lake level of 6,392 MSL which, over the long term, will permit LADWP to divert roughly twenty-five percent of the waters controlled by the 1940 permits, using feasible alternative sources to make-up the supply deficit. Decision 1631 adopted that recommendation. No party appealed, ending the Mono Lake Cases. The EIR was critical to persuading LADWP and other parties and, more importantly, the affected public that the State had diligently studied the problem and found the best balance of protection both of municipal water supply and the public trust. Today, Mono Lake and its streams are returning to good condition.

Richard Roos-Collins is Senior Staff Attorney for the Natural Heritage Institute. Mr. Roos-Collins was trial counsel for California Trout in the Mono Lake cases.