Citations to Exhibits: Citations to exhibits in the record are indicated by the letter "R" (to indicate that the hearing involves restoration issues), followed by the abbreviation for the party submitting the exhibit, followed by the number of the party's exhibits, followed by the page number or other location of the information in the exhibit.
On September 28, 1994, the State Water Resources Control Board (SWRCB) adopted Water Right Decision 1631. Decision 1631 revised the conditions of Licenses 10191 and 10192 which authorize the City of Los Angeles Department of Water and Power (Los Angeles) to divert water from four streams which flow into Mono Lake. The decision established: (1) minimum flow requirements necessary to maintain fish in good condition below Los Angeles' diversion structures; (2) higher flow requirements to be met on a periodic basis for channel maintenance purposes; and (3) detailed water diversion criteria intended to regulate water exports from the Mono Basin in a manner that will result in an eventual long-term average water elevation at Mono Lake of approximately 6,392 feet. The conditions adopted in Decision 1631 were established to protect fish and other public trust resources in the Mono Basin while continuing to allow diversion of some water for municipal use.
No party sought reconsideration or judicial review of Decision 1631. The conditions established in Decision 1631 are leading to significant restoration and recovery of fish habitat, waterfowl habitat, and other public trust resources in the Mono Basin. Footnote1 Decision 1631 resolved the major controversies relating to Los Angeles' diversion of water from the Mono Basin, but the record before the SWRCB in 1994 was not sufficient to determine what additional restoration measures should be required in order to promote recovery of streams and waterfowl habitat. Therefore, Decision 1631 directed Los Angeles to evaluate potential restoration measures and to submit proposed plans for restoration of Rush Creek, Lee Vining Creek, Parker Creek, and Walker Creek and restoration of waterfowl habitat in the Mono Basin. In view of the effect of Grant Lake on stream flows and water exports from the Mono Basin, Decision 1631 also required that the stream restoration plan include an element addressing the operation and management of Grant Lake.
Los Angeles engaged in a cooperative process with parties designated in Decision 1631 to develop the required restoration plans, but some proposals remain in dispute. The SWRCB conducted eight days of hearing on the restoration plans ending on May 7, 1997. The focus of the hearing was to determine the extent to which the restoration plans comply with the requirements of Decision 1631 and to determine what, if any, changes are needed. Final legal briefs were submitted by interested parties in July 1997.
This order begins with a brief review of the findings and requirements of Decision 1631 regarding stream and waterfowl habitat restoration and the process through which the restoration plans were developed. The order then addresses the evidence regarding various proposed restoration measures, as well as a proposed settlement agreement submitted by Los Angeles and some of the other parties near the end of the hearing.
Based on our review of the evidentiary record and the requirements of Decision 1631, this order requires implementation of stream restoration measures which generally are consistent with the proposed settlement agreement. This order also requires a waterfowl and waterfowl habitat monitoring program and other specified measures to promote waterfowl habitat restoration. For the reasons discussed in Sections 6.0 through 6.5 below, this order does not require funding of a waterfowl habitat restoration foundation as proposed by some of the parties.
The SWRCB's prior findings regarding the stream and waterfowl habitat restoration plans, and the evaluation criteria governing our review of the plans, are summarized in Sections 2.1 through 2.4 below.
"Restoration of pre-diversion waterfowl habitat would permit substantial increases in migratory waterfowl use at Mono Lake. The actual numbers of waterfowl which would use these restored habitats, however, is unknown and is dependent in part upon the restoration of other similarly degraded habitats in the interior portion of the Pacific Flyway and annual fluctuations in waterfowl reproduction and populations. Maximum restoration of waterfowl habitat in the Mono Basin would require maintaining a water level of 6,405 feet."
Decision 1631 does not require Los Angeles to mitigate for all waterfowl habitat lost as a result of previously authorized water diversions. Rather, Decision 1631 cites the "physical solution doctrine" as the basis for requiring Los Angeles to consider measures to mitigate for at least some of the loss of waterfowl habitat that is expected to continue as a result of continuing water diversions. Although pre-project (i.e., pre-1941) conditions provide a helpful reference point, Decision 1631 does not require that Los Angeles undertake restoration measures aimed at restoring pre-project conditions. The specific criteria governing the SWRCB's evaluation of proposed restoration measures are discussed in Section 2.4 below.
The inflow, outflow and quantity of water in storage at Grant Lake substantially affect the amount of water available for instream flows and channel maintenance flows in Rush Creek, as well as the amount of water available for export from the Mono Basin. In view of the importance of Grant Lake to stream flows and water diversions in the Mono Basin, Decision 1631 specifically requires that Los Angeles include a Grant Lake operations and management plan as an element of its stream restoration plan. (Decision 1631, p. 205.) Due to the complexity of Grant Lake operations, Los Angeles addressed the subject of Grant Lake operations and management in a separate document. As recognized in the Los Angeles plan and the proposed settlement agreement, Grant Lake operations must be considered in conjunction with downstream restoration measures.
"Licensee shall prepare and submit to the SWRCB for approval a stream and stream channel restoration plan and a waterfowl habitat restoration plan, the objectives of which shall be to restore, preserve and protect the streams and fisheries in Rush Creek, Lee Vining Creek, Walker Creek, and Parker Creek, and to help mitigate for the loss of waterfowl habitat due to the diversion of water under this license. The plans shall include consideration of measures to promote restoration of the affected streams and lake-fringing wetlands which are functionally linked to the streamflows and lake levels specified in this order. The restoration plans shall include elements for improving instream habitat for maintaining fish in good condition. The plans are subject to technical and financial feasibility, reasonableness, and adequacy of the measures proposed to achieve the stated objectives. The restoration plans shall identify the specific projects to be undertaken, the implementation schedule, the estimated costs, the method of financing, and estimated water requirements."
The stream and waterfowl restoration plans submitted to the SWRCB are the result of a lengthy process with repeated opportunities for input from the California Department of Fish and Game (DFG), the California State Lands Commission (SLC), the California Department of Parks and Recreation (DPR), the United States Forest Service (USFS), the National Audubon Society (NAS), the Mono Lake Committee (MLC), and California Trout, Inc. (CalTrout). Los Angeles also used information provided by other parties, including consultants with expertise in stream and waterfowl habitat restoration. Following completion of draft restoration plans, Los Angeles circulated the draft plans for review and comment by interested parties. Los Angeles revised the plans in response to comments from interested parties and then submitted the following documents dated February 29, 1996, to the SWRCB.
(7) Comments and Response to Comments on the Draft Stream Restoration, Grant Lake Operations and Management, and Waterfowl Habitat Restoration Plans.
Interested parties were allowed until April 8, 1996, to submit written comments to the SWRCB regarding the restoration plans. Based on the extensive comments received, the SWRCB initially scheduled a hearing on the proposed plans for July 29 and 30, 1996. At the request of DPR, DFG, USFS, MLC, NAS, and CalTrout, the hearing was postponed to provide additional time for those parties to attempt to resolve contested issues with Los Angeles. The hearing was rescheduled to October 9 and 10, 1996, but postponed again at the joint request of DPR, MLC, NAS, CalTrout and Los Angeles in order to provide a further opportunity for resolution of differences.
Disagreements over the restoration plans were not fully resolved and the hearing began on January 28, 1997. The SWRCB conducted six days of evidentiary hearings between January 28 and February 26, 1997, at which time the hearing was recessed at the request of several parties who expressed confidence that they could reach agreement on a proposed settlement. After the SWRCB was notified that a proposed settlement was reached by some, but not all, of the parties to the hearing, the hearing was resumed on May 6, and completed on May 7, 1997.
At the resumption of the hearing, counsel for Los Angeles presented a proposed settlement agreement dated March 28, 1997, reached by representatives of some of the parties to the proceeding. (T 1514:9-1518:21.) The settlement agreement was marked for identification as Los Angeles Exhibit R-DWP-68, but was not offered into the evidentiary record. A second agreement, the Mono Basin Waterfowl Habitat Restoration Foundation Conceptual Agreement, was referred to in the proposed settlement agreement and also submitted and marked for identification. (R-DWP-68A.) No testimony was offered in support of the proposed agreements. Rather, the agreements were submitted on behalf of the signatories as a proposed modification of Los Angeles' previously submitted restoration plans, with the understanding that the parties would address the proposed settlement in post-hearing briefs. (T 1518:2-1521:9.).
The parties were granted the opportunity to submit closing briefs and reply briefs. The final day for submission of legal briefs was July 17, 1997. The briefs addressed the evidence presented at the hearing as well as the proposed settlement agreement.
The preparation and review of stream and waterfowl habitat restoration proposals were parts of a lengthy process extending from adoption of Decision 1631 on September 24, 1994, to the present. As discussed in Section 5.4 below, that process successfully resolved most of the issues concerning the stream restoration work to be undertaken by Los Angeles in a manner that is generally consistent with Decision 1631 and which has widespread support among the parties to this proceeding.
As discussed in Section 6.3 below, the proposed settlement does not define most of the specific waterfowl habitat projects which would be undertaken pursuant to the agreement. Rather, having completed a multi-year planning process pursuant to the provisions of Decision 1631, the parties to the suggested settlement now propose to initiate a new planning process through which specific waterfowl habitat restoration measures would be determined at a future time by a newly created waterfowl habitat restoration foundation. In contrast to the broad support for the stream restoration measures in the proposed settlement, the proposal regarding waterfowl habitat restoration met considerable opposition from local citizens and organizations, the Mono County Board of Supervisors, and various other governmental officials and employees.
Los Angeles presented the restoration plans and related documents described in Section 3.0. Los Angeles also presented testimony in support of approving the restoration plans. Following the recess of the hearing on February 26, 1997, and negotiations among some of the parties, Los Angeles joined with several other parties to request that the SWRCB approve the March 28, 1997, proposed "Mono Lake Settlement Agreement" as a modification of the previously submitted restoration plans.
The United States Bureau of Land Management (BLM) introduced substantial evidence about the importance of the wildlife and other resources dependent upon the flows in Wilson Creek which could be adversely affected by proposed waterfowl habitat restoration measures for Mill Creek as discussed in Section 6.4.2.
The People for Mono Basin Preservation (PMBP) participated in the hearing on behalf of many Mono County residents and others who oppose aspects of the waterfowl habitat restoration plan submitted by Los Angeles and the approach to waterfowl habitat restoration described in the proposed settlement agreement. PMBP is primarily concerned about protection of the resources currently dependent upon flows in Wilson Creek. As discussed in Section 6.4.2, PMBP opposes restoring higher flows to provide waterfowl habitat along Mill Creek at the expense of the environmental, fishery, wildlife, and other values served by the current level of flow in Wilson Creek. PMBP also opposes payment of $3.6 million to a waterfowl habitat restoration foundation under the provisions of the Waterfowl Habitat Restoration Foundation Conceptual Agreement. (R-DWP-68A.) PMBP supports waterfowl habitat restoration in the Rush Creek bottomlands and introduced evidence regarding other potential waterfowl habitat restoration measures. PMBP did not offer evidence regarding stream restoration proposals for Rush Creek, Lee Vining Creek, Walker Creek or Parker Creek, but the group expressed general support for the stream restoration measures identified in the proposed settlement agreement.
In addition, the plan proposes twelve other restoration measures to help "jumpstart" the recovery that is occurring due to the restoration of flows in the four streams and the additional restoration expected to occur as a result of the higher seasonal flows. The measures include installation of large woody debris in Rush Creek and Lee Vining Creek, rewatering additional channels in Rush Creek, a limited planting program in the riparian areas of the four streams, sediment passage facilities at diversion structures (at Lee Vining, Parker and Walker Creeks), flood flow contingency plans to protect Highway 395, limited vehicular access to sensitive areas, a livestock grazing moratorium for 10 years after entry of Decision 1631, possible installation of fish screens on irrigation diversions based on consultation with DFG, removing bags of gravel which were previously placed in Lee Vining Creek as part of previous restoration efforts, removing limiter logs and modifying channel entrances in Lee Vining Creek, Footnote9 supporting the California Transportation Department in rehabilitation of the Parker Plug area on Parker Creek, and rehabilitation of the Mono Return Ditch and Lee Vining Conduit in order to allow for providing higher channel maintenance flows to Rush Creek. The plan contains an evaluation of various other measures which Decision 1631 required Los Angeles to consider and explains why those measures are not recommended. In addition, Los Angeles proposed a detailed monitoring plan to evaluate stream recovery.
(2) Los Angeles is to implement its proposed stream monitoring program under the direction of Dr. Trush, Mr. Hunter, and other independent scientists to be agreed upon by the parties to the proposed settlement. The monitoring team is to perform a number of tasks including: (a) making recommendations on flows needed for restoration of Rush Creek below the Department of Water and Power return ditch and the need for a Grant Lake bypass to achieve those flows; (b) submitting reports evaluating the results of the monitoring program and recommending any appropriate changes; and (c) making a recommendation to the SWRCB that the stream restoration program is complete. The proposed settlement also provides for establishing quantified criteria for determining when monitoring of stream restoration and recovery can be terminated.
(3) Los Angeles is to upgrade the Rush Creek Return Ditch as proposed in its plan, but agrees not to raise the cost of that upgrade as a reason in the future for not constructing a Grant Lake bypass if such a facility is needed to provide appropriate stream flows.
(4) Los Angeles will implement its plan for large woody debris and will thereafter add large woody debris to Rush and Lee Vining Creeks on an opportunistic basis, based on the recommendations of the monitoring team.
(5) If channels opened for stream restoration purposes become closed, Los Angeles will follow the case-by-case recommendation of the monitoring team regarding reopening of any closed channels.
(6) Los Angeles will hire experts agreeable to the parties to the proposed settlement to analyze and design sediment bypass systems at diversions on Walker, Parker, and Lee Vining Creeks. The SWRCB will be asked to resolve any disagreements regarding construction of recommended sediment passage facilities.
(7) Los Angeles will comply with applicable law regarding fish passage, but need not include fish passage in the stream restoration plan.
(8) Los Angeles will implement its February 29, 1996, Grant Lake Operations and Management Plan with certain specified changes.
(9) Existing facilities for collecting flow data will be retrofitted to make data available "on a same day basis on a web site."
The proposed settlement is based on the anticipation that the SWRCB will enter an order consistent with the agreement. The proposed settlement represents a generally successful effort among the signatories to resolve their remaining differences regarding the stream restoration plan submitted by Los Angeles. The stream restoration plan, as modified by the proposed settlement agreement and the provisions of this order, provides a workable basis for compliance with the applicable provisions of Decision 1631. As discussed in Section 5.4 below, the provisions of this order requiring implementation of stream restoration measures are structured in the manner necessary to maintain appropriate SWRCB enforcement authority over the licensee.
Experience in recent years has shown it is impossible to control high flows sufficiently to establish a successful Mono Basin stream restoration program which places a heavy reliance on structural "improvements" to stream channels. (T 327:6-329:9) Therefore, the SWRCB agrees with the conclusion reflected in Los Angeles' stream restoration plan and the proposed settlement agreement that it is preferable to promote stream restoration and recovery through providing appropriate flows and sound land management. The modifications to the stream restoration plan which are called for in the proposed settlement agreement are addressed below.
Up until the time that the water level in Mono Lake reaches 6,392 feet, the proposed settlement agreement calls for higher flows for stream restoration in Rush Creek as specified in a February 13, 1996 memorandum, except in dry years, and except when the higher flows cannot be provided without reducing water exports from the Mono Basin during dry/normal and normal years. The settlement agreement would also provide for specified higher flows for stream restoration purposes in all four streams between the time the lake reaches 6,392 feet and when the stream restoration program is determined to be "complete" by the SWRCB. The higher flows during this period would apply in extreme wet years, wet years, and wet/normal years. Footnote13 During all other years, the proposed settlement agreement calls for stream restoration flows based upon the provisions of the Grant Lake Operation Management Plan. The proposed settlement agreement also states that upon completion of the stream restoration program, it may be necessary to modify the channel maintenance and flushing flow requirements established in Decision 1631.
Dr. Platts testified that there may be a difference regarding the level of flows needed to help restore a degraded stream system and the flows needed to maintain the habitat once the stream system has been reestablished. Dr. Platts supports higher peak flows as a means of promoting stream restoration, but recommends revisiting the subject of channel maintenance flows later on in the stream restoration and recovery process. (T 205:21-206:18.) Dr. Trush also recognized a distinction between flows that are needed for channel maintenance and flows that are needed for restoration of the adjoining floodplain. (T 467:18-469:17.) As discussed in Section 5.1, the record of recent high flows in the Mono Basin indicates that the ability to control peak flows in wet years is limited. Thus, in some years, higher flows of the type presently recommended for stream restoration purposes may occur whether required or not.
In view of the evolving recommendations of various experts regarding the level of flows needed for channel maintenance and stream restoration purposes, it would be unwise to revise the long-term channel maintenance flow requirements established in Decision 1631 at the present time. In addition, the SWRCB does not have sufficient evidence before it to determine the impacts on lake level of meeting the settlement agreement flows on a long-term basis. Footnote14 However, based on the evidence presented regarding the anticipated benefits of higher spring peaking flows for stream restoration purposes, and the willingness of Los Angeles to provide those flows, the SWRCB concludes that it would be reasonable to provide the higher flows called for in the settlement agreement on an interim basis subject to the provisions of this order. The subject of stream restoration flows can be reviewed by the SWRCB in the future with the benefit of the additional information which will be developed through monitoring stream restoration and recovery in the Mono Basin.
As discussed in Section 5.1 above, the goal of the stream restoration program proposed by Los Angeles is to develop "functional and self-sustaining stream systems with healthy riparian ecosystem components." (R-DWP-16, p. vi.) The proposed settlement calls for implementation of the stream monitoring program proposed by Los Angeles with specified modifications, including establishment of a monitoring team under the direction of Dr. Trush and Mr. Hunter and such other independent scientists as are agreed upon by the parties. The monitoring team is to evaluate and make recommendations regarding various subjects related to stream restoration. The settlement agreement identifies a number of factors to be considered for determining when stream restoration monitoring may be discontinued.
". . . spent a lot of time trying to do that, and it just didn't work out very well. There just wasn't the pre-1941 data to give us anything quantitative for restoration goals. That is why we shifted gears on this monitoring plan to monitor the processes that actually are going to create the habitat that will be utilized by fish.
Despite contrary testimony of various experts, the proposed settlement agreement calls for establishment of quantified criteria for determining when stream restoration will be considered complete. The information collected regarding the specified "termination criteria" will provide helpful information regarding recovery of the four streams. In accordance with the intention of the parties to examine certain characteristics of each stream, this order provides that the stream restoration monitoring team employed by Los Angeles shall report on a number of specified factors relevant to the condition of the four affected streams. However, based on the extensive expert testimony regarding restoration of the four streams degraded by Los Angeles' past water diversions, the SWRCB concludes that, in this instance, more general criteria should be used as the basis for determining when the stream restoration program can be regarded as complete or when stream restoration monitoring may be terminated.
(1) Whether fish are in good condition. This includes self-sustaining populations of brown trout and other trout similar to those that existed prior to the diversion of water by Los Angeles and which can be harvested in moderate numbers.
As explained in Section 5.2 above, the proposed settlement agreement includes various changes and clarifications in the provisions of Los Angeles' stream restoration plan. The changes and clarifications concern the Rush Creek Return Ditch, placement of large woody debris in stream channels, reopening side channels, sediment bypass facilities, fish passage facilities, the Grant Lake Operations and Management Plan, and flow data collection facilities. Except as modified by this order based on the findings herein, the provisions of the proposed settlement regarding these subjects constitute a reasonable approach to resolution of the parties' remaining differences regarding the Mono Basin stream restoration plan in a manner which is consistent with the requirements of Decision 1631. In order to allow for easy monitoring of the flows in Rush Creek, Lee Vining Creek, Parker Creek, and Walker Creek, this order provides that the retrofitted streamflow data collection facilities referred to in the proposed settlement shall be installed and operated in a manner acceptable to the Chief of the Division of Water Rights and that data from those facilities shall be made available on a real-time basis.
The proposed settlement agreement makes a slight modification to the provisions of the Grant Lake Operation Management Plan concerning excess water needed for "lake level" purposes. The agreement provides that, to the extent practicable, the water needed for lake level purposes be allowed to flow down the four affected streams "in a manner as to mimic the impaired natural hydrograph." The SWRCB finds that releasing or bypassing the additional water required for lake level purposes in a manner which reflects the natural impaired hydrograph is a reasonable water management approach.
The instream flow requirements established in Decision 1631 were based on a detailed review of extensive evidence regarding flows needed for protection of fish in the affected streams. Revision of the instream flow requirements for protection of fish and fishery habitat was not the subject of the present proceeding. Therefore, approval of the settlement agreement provision regarding the release or bypass of additional water needed for maintaining the water level in Mono Lake, should not be construed as a revision of the instream flows for fishery habitat specified in Decision 1631.
The stream restoration measures called for in Los Angeles' plan and the proposed settlement agreement emphasize facilitating the natural recovery of the affected streams and adjoining area through providing proper flows and sound land management. The evidence before the SWRCB establishes that the emphasis on flows and sound land management is desirable and that, in this instance, an approach to stream restoration which relies on extensive structural measures cannot be justified.
Decision 1631 provided that the required restoration plans are to be "functionally linked to the stream flows and lake levels" provided in the decision. (Decision 1631, p. 204.) The higher peak flows proposed in the settlement agreement for stream restoration purposes exceed the channel maintenance flows specified in Decision 1631, but the higher stream restoration flows were agreed to by Los Angeles and they would not require a reduction of exports from the Mono Basin in years with normal or below normal precipitation. This order establishes higher flows for stream restoration purposes on an interim basis pending future review and revision by the SWRCB.
Several witnesses testified regarding the need for adaptive management to respond to changing conditions and new information. The evidence before the SWRCB regarding the results of past stream restoration efforts and the significant changes in recommendations regarding the nature of future restoration work demonstrate the need for flexibility as additional knowledge and experience are acquired. It generally would not be feasible for the SWRCB members to consider minor modifications to restoration work conducted under the requirements of this order within the timeframe in which a decision is needed. Therefore, this order provides that any revisions to required restoration measures shall be subject to the approval of the Chief of the Division of Water Rights. The delegation of authority to the Chief of the Division of Water Rights establishes a workable procedure allowing for adaptive management during the stream restoration and recovery process.
The stream restoration plan and the Grant Lake Operations and Management Plan submitted by Los Angeles, with the modifications in the proposed settlement agreement and this order, set forth restoration proposals which are reasonable, feasible, and which appear to be adequate to achieve reasonable restoration of the four affected streams and stream channels with minimum potential for adverse environmental effects. The plans identify the specific projects to be undertaken, the implementation schedule, estimated costs, method of financing, and estimated water requirements. The requirements of this order are generally consistent with the provisions of the stream restoration plan and the stream restoration provisions of the proposed settlement. The SWRCB concludes that implementation of the specified stream restoration measures pursuant to the provisions of this order will satisfy the stream restoration requirements of Decision 1631.
As discussed in Section 2.2 above, Decision 1631 recognized the trade-offs between establishing an average lake level of 6,405 feet (which would lead to restoration of the largest amount of waterfowl habitat) and establishing an average lake level of 6,392 feet. The target average elevation of 6,392 feet, and the accompanying inflow to Mono Lake, will lead to restoration of a significant amount of waterfowl habitat while also maintaining access to popular tufa sites and allowing diversion of water for municipal use. In furtherance of the constitutional mandate to maximize the beneficial use of water for all purposes, Decision 1631 relied upon the physical solution doctrine as the basis for requiring Los Angeles to prepare a waterfowl habitat restoration plan which proposes reasonable, financially feasible waterfowl habitat restoration measures which have minimum potential for causing adverse environmental impacts. Footnote19 Among other things, the waterfowl habitat restoration plan was required to identify the specific projects to be undertaken, the implementation schedule, and the estimated costs.
Based on the recommendations of several parties specified in Decision 1631, Los Angeles retained a group of three waterfowl experts to develop a waterfowl habitat restoration proposal. The three scientists' report served as the primary technical document for development of the waterfowl habitat restoration plan submitted by Los Angeles. (R-DWP-20.) There was considerable disagreement among the parties to the hearing regarding measures proposed in that plan. Near the close of the hearing, Los Angeles and several other parties proposed that the SWRCB adopt a revised approach to waterfowl habitat restoration as set forth in the "Mono Basin Waterfowl Habitat Restoration Foundation Conceptual Agreement." (R-DWP-68A, hereinafter referred to as the "conceptual agreement.") The executed agreement was provided to the SWRCB following the hearing. The approach to waterfowl habitat restoration proposed in the conceptual agreement is supported by the parties to the agreement, but opposed by PMBP, Mono County, and numerous Mono County residents and organizations.
Sections 6.1 through 6.5 below discuss the three scientists' report, the waterfowl habitat restoration plan initially submitted by Los Angeles, the approach to waterfowl habitat restoration called for in the conceptual agreement, specific waterfowl habitat restoration measures addressed at the hearing, and the waterfowl habitat restoration measures which the SWRCB concludes should be implemented pursuant to the provisions of Decision 1631 and this order.
Although the report includes some information about the cost of potential restoration measures, Dr. Reid testified that the scientists were instructed by Los Angeles not to include cost considerations as an element in making their recommendations of waterfowl habitat restoration projects. (T 883:9-883:20.) The relatively high cost of several recommended projects confirms that economic feasibility was not a major consideration in the scientists' report.
Decision 1631 directed that the restoration plans should emphasize restoration proposals with minimum potential for adverse environmental impacts. (Decision 1631, p. 207.) However, the waterfowl scientists' report included very little discussion or recognition of the potential adverse environmental effects of restoring flows to Mill Creek at the expense of flows in Wilson Creek. As discussed in Section 6.4.2 below, evidence presented by BLM and the PMBP establishes that Wilson Creek provides important habitat for fish and wildlife, and that the present level of flow in Wilson Creek serves numerous other beneficial uses. Certainly, if proposals to restore higher flows to Mill Creek are pursued by Los Angeles or others, then the environmental effects of those proposals must be fully evaluated before deciding if benefits of the proposal outweigh the adverse effects.
In summary, the waterfowl scientists' report provides a detailed assessment of numerous waterfowl habitat restoration possibilities in the Mono Basin. The report was used in developing the waterfowl habitat restoration plan submitted by Los Angeles and it provides much of the basis for the conceptual agreement submitted as part of a suggested settlement. In reviewing the waterfowl habitat restoration proposals addressed in the report and at the hearing, the SWRCB must consider the evidence in the record regarding potential adverse environmental effects of proposed restoration measures, economic feasibility and reasonableness, and the extent to which proposed restoration measures comply with other criteria specified in Decision 1631.
The Los Angeles waterfowl habitat restoration plan was the subject of criticism by some parties who argue that the plan did not commit Los Angeles to enough waterfowl habitat restoration work. The plan was also subject to extensive criticism from PMBP and numerous residents and organizations from the Mono Basin and surrounding areas who oppose waterfowl habitat restoration proposals for the north end of the Mono Basin which could adversely affect resources and uses dependent upon Wilson Creek.
At the request of several parties to the proceeding, the SWRCB announced on February 25, 1997, that it would recess the hearing in order to allow the parties an opportunity to prepare a proposed settlement for consideration by the SWRCB. The result of those negotiations was the proposed settlement agreement discussed in Section 5.2 above. On May 6, 1997, counsel for Los Angeles requested that the Waterfowl Habitat Restoration Foundation Conceptual Agreement (R-DWP-68A) be regarded as a modification of the waterfowl habitat restoration plan which Los Angeles had previously submitted.
(4) Consideration of other restoration and monitoring measures such as the feasibility of rewatering the County Pond system immediately below the DeChambeau Ponds.
With the exception of the amounts allocated to monitoring activities and restoration and maintenance of open water habitat, the conceptual agreement does not specify how the remaining $2.85 million of the funds to be contributed to the foundation is to be spent among the various potential restoration projects or related activities. Neither the conceptual agreement, nor any of the parties to the agreement, have identified the specific restoration projects which would justify payment of $3.6 million to the proposed foundation.
Moreover, the conceptual agreement is opposed by numerous Mono Basin residents, the Mono County Board of Supervisors and other elected officials, and many other local groups. The widespread opposition to the proposed settlement makes it apparent that the benefits normally expected from accepting a settlement proposal involving many, but not all, parties cannot be expected in the present case. Rather than retaining SWRCB oversight of specific restoration projects to be undertaken by a water right licensee, approval of the waterfowl habitat portion of the proposed settlement would result in endowing a new independent foundation with $3.6 million of public funds to pursue unspecified projects over the opposition of Mono County and numerous residents of the Mono Basin. Rather than representing resolution of the disputes over waterfowl habitat restoration proposals, SWRCB approval of the conceptual agreement could cause an escalation of those disputes.
The diversion of water from Mono Basin streams for use in Los Angeles resulted in greatly reduced inflow to Mono Lake and a lower water level at the lake. This, in turn, caused a reduction in freshwater habitat areas around the lake and a large reduction in the hypopycnal Footnote27 areas at the mouths of Rush Creek and Lee Vining Creek. Footnote28 The waterfowl scientists' report agrees with the finding in Decision 1631 that the most significant measure to improve waterfowl habitat is to restore the flow in the four tributary streams and thereby raise the water level of Mono Lake.
Requiring a higher lake level (above the 6,392 feet provided for in Decision 1631) could restore additional waterfowl habitat, but would also result in flooding additional tufa areas, as well as reduce the amount of water available for consumptive uses. Rather than requiring a higher water level in Mono Lake, Decision 1631 directed Los Angeles to evaluate other potential measures that could restore or help mitigate for the loss of waterfowl habitat due to water diversions by Los Angeles.
Both the Los Angeles waterfowl habitat restoration plan and the settlement proposal represented in the conceptual agreement are based in large part upon recommendations in the waterfowl scientists' report. Therefore, evaluation of the waterfowl habitat restoration proposals before the SWRCB requires examination of several of the major restoration measures identified in the scientists' report. As indicated in the hearing notice, the focus of the SWRCB's inquiry is on determining if the restoration proposals presented comply with the criteria established in Decision 1631, and, if not, what revisions are necessary.
The waterfowl habitat restoration plan submitted by Los Angeles proposes to rewater all of the five channels and channel complexes identified in scientists' report. (R-DWP-20, p. 9.) The Los Angeles plan also recommends that periodic evaluations be conducted to assess the recovery of secondary channels and depressional areas. Some of the channels which are proposed to be rewatered for waterfowl habitat purposes were also identified in the stream restoration plan discussed in Sections 5.0 through 5.4 above. The Los Angeles waterfowl habitat restoration plan provides that Los Angeles will fund the $68,000 estimated cost for the project and that work will begin during the first full field season after approval of the plan by the SWRCB. The goal is to complete as much of the work as possible in the first year, although two or more years may be required to open all of the identified channels. (R-DWP-20, p. 22.) There was no evidence presented of adverse environmental effects attributable to reopening the secondary channels in the Rush Creek bottomlands.
Diversion of water from Mill Creek for irrigation began before the turn of the century. Dr. Stine testified that the bottomlands of Mill Creek are marked by the trunks of dead cottonwood trees killed by the dewatering of the stream that began in the 1870's. By early in this century, most of the riparian vegetation on the Mill Creek bottomlands had died. (R-SLC/DPR-400, p. 2.) Construction of the "Lundy Project" hydroelectric facilities in 1911 by a predecessor to Southern California Edison resulted in diversion of water from Mill Creek through the Lundy Powerhouse and release into the tailrace. From the tailrace, the majority of the water flows to Wilson Creek. The net result of water diversion for irrigation and power purposes at the north end of the Mono Basin is that the quantity of flow in lower Mill Creek has been substantially reduced from what existed in a state of nature, and much of that water now flows downstream to Mono Lake through Wilson Creek. Although Los Angeles uses its water rights on Mill Creek for irrigation of Thompson Ranch, Los Angeles does not divert any water from either Mill Creek or Wilson Creek for export from the Mono Basin.
There was no evidence presented regarding the effect which restoring the full (or nearly full) flow of water to Mill Creek would have on the water elevation of Mono Lake. If irrigation at the north end of the Mono Basin were to be reduced in order to restore "natural" flows to Mill Creek, the inflow to Mono Lake would increase. Determining the impact the additional flow from Mill Creek would have on lake level would require evaluation of the inflows from other Mono Basin streams and the water diversion criteria established in Decision 1631. Evaluation of those issues is beyond the scope of the present proceeding.
In the period in which waterfowl were reported to be abundant in the Mono Basin during the 1930's to early 1960's, the flow in Mill Creek had already been reduced as discussed previously. (R-DWP-20, Appendix 1, p. 97.) Thus the large hypopycnal areas attributable to inflow to Mono Lake from surrounding streams was largely due to flows from Rush Creek and Lee Vining Creek. As discussed in Section 6.4 above, the testimony indicates that the flows in Rush Creek and Lee Vining Creek required by Decision 1631 will result in larger hypopycnal areas at the mouths of those streams than occurred under natural conditions during the months most important to waterfowl. Footnote36 The SWRCB concludes that establishment or restoration of a large hypopycnal area at the mouth of Mill Creek is not necessary to provide suitable waterfowl habitat pursuant to the provisions of Decision 1631.
The present proceeding was not intended to provide a forum for resolution of complicated land and water use issues at the north end of the Mono Basin which have relatively little to do with waterfowl habitat. However, the evidence presented at the hearing clearly establishes that rewatering Mill Creek sufficiently to create significant waterfowl habitat cannot be considered to be a project which has "minimum potential for adverse environmental effects." Thus, regardless of the ultimate merits of some future proposal that may involve increased flow in Mill Creek, the evidence before the SWRCB does not merit inclusion of that proposal in the context of considering waterfowl habitat restoration measures meeting the requirements of Decision 1631. Footnote38 Proposals to rewater Mill Creek involve changes in the exercise of existing water rights which are beyond the scope of the current proceeding.
The record also shows that the cost of the work already completed at DeChambeau Ponds as part of the USFS, Ducks Unlimited, and MLC project has been very high for the amount of waterfowl habitat provided to date. In view of the even higher estimated cost of the County Ponds project as proposed in the waterfowl scientists' report, the SWRCB concludes that the proposed method of rehabilitating the County Ponds does not comply with the reasonableness and financial feasibility criteria specified in Decision 1631. Evidence in the record indicates that similar habitat could be restored at much lower cost through the exercise of existing water rights in accordance with the USFS policy as set forth in the 1993 decision notice on the DeChambeau Enhancement Project.
The type and extent of any additional waterfowl habitat restoration efforts on the USFS property at the north end of the Mono Basin will depend in part upon the success of the previous work at DeChambeau Ponds and the resumption of surface water use on DeChambeau Ranch. If the USFS decides to continue exercising its surface water rights in accordance with the 1993 decision notice, restoration of waterfowl habitat in the County Ponds area would be a reasonable project which could be done in a manner consistent with the provisions of Decision 1631.
The record indicates that repairs and improvements to the surface water diversion and distribution facilities which have historically served the DeChambeau Ranch from Wilson Creek can be done for a small fraction of the cost of developing and operating an entirely new groundwater pumping and distribution system to serve the County Ponds. In view of the potential value of the County Ponds and Black Point areas for waterfowl habitat, and the loss of habitat elsewhere in the Mono Basin due to Los Angeles' diversions, the SWRCB concludes that it would be reasonable to direct that, upon request of the USFS, Los Angeles provide financial assistance to the USFS for repairs to water diversion and distribution facilities and for related waterfowl habitat restoration work at County Ponds and Black Point.
Although the subject of specific habitat enhancements at the County Ponds was not analyzed in 1993, the USFS Decision Notice for the DeChambeau Enhancement Project concludes that 11.6 cfs of the USFS water right remains available for use at the DeChambeau Ranch and that continuing to exercise that right can benefit riparian and wildlife uses at various locations including the DeChambeau Marsh and County Ponds. (R-PMBP-43, p. 2.) As the owner of the DeChambeau Ranch and the appurtenant water rights, the USFS has authority to determine how to manage its property at the County Ponds and Black Point areas, as well as responsibility for the costs of managing that property. Any financial contribution to the USFS which Los Angeles is directed to make pursuant to this order is limited to money needed for initial repairs or improvements to water delivery facilities and waterfowl habitat areas as may be requested by the USFS.
Based on the evidence regarding the joint work of the USFS and PMBP in the spring of 1997, and the availability of volunteer assistance from Mono County residents, the SWRCB concludes that any additional work necessary for restoring a reliable surface water distribution system serving the County Ponds area should be relatively minor. If the USFS develops a project requiring installation of a lengthy pipeline, the cost would increase but water loss could be significantly reduced. Although the costs of a viable restoration project at County Ponds may be substantially less, the SWRCB concludes it would be reasonable to require Los Angeles to contribute up to $250,000 for a waterfowl habitat restoration project at County Ponds in the event the USFS develops a project which requires that much financial assistance. A cost of $250,000 for restoration of 20 acres of waterfowl habitat at County Ponds would be approximately equal to the per acre cost of the De Chambeau Ponds project. De Chambeau Ponds is the most costly waterfowl habitat restoration project previously undertaken in the Mono Basin. Based on the cost estimates in the waterfowl habitat restoration plan, the SWRCB concludes that the responsibility of Los Angeles for the reasonable costs for waterfowl habitat improvements at the Black Point area should not exceed an additional $25,000. (R-DWP-20, pp. 23 and 38.) Footnote41 The primary decision regarding the extent and type of waterfowl habitat work that may be undertaken on USFS land lies with the landowner.
The waterfowl habitat restoration plan submitted by Los Angeles does not propose development of scrapes except in the Black Point area. In accordance with the waterfowl scientists' recommendation and the laws and policies governing the Mono Lake Tufa State Reserve and the Mono Basin National Scenic Area, the SWRCB concludes that Los Angeles should not be required to undertake or provide financial assistance for additional "scrapes" in lake-fringing wetlands areas at this time. However, in the event that the USFS decides not to undertake waterfowl habitat restoration at County Ponds or Black Point, and in the event that the relevant state and federal agencies determine that shallow scrapes or other unobtrusive projects should be undertaken on wetland areas adjoining Mono Lake, then it would be appropriate for Los Angeles to provide financial assistance for those projects up to the total amount of $275,000 discussed above for work at County Ponds and Black Point. Similarly, in the event that projects are completed in the County Ponds and Black Point areas at a cost to Los Angeles of less than $275,000, then it would be appropriate to make the remaining funds available for shallow scrapes or other unobtrusive waterfowl habitat projects which the relevant state and federal agencies may elect to undertake on their wetland property adjoining Mono Lake. In the event that the relevant state and federal agencies elect not to approve or pursue waterfowl habitat projects in wetland areas adjoining Mono Lake, then it would not be feasible to require Los Angeles to assist with those projects.
Controlled burning in the Mono Basin is subject to the regulatory authority of the California Department of Forestry and the Great Basin Air Pollution Control District, as well as the permission and cooperation of the landowner(s) where burning is to take place. The record before the SWRCB indicates that the controlled burning program proposed in the waterfowl habitat restoration plan would have benefits for waterfowl habitat and should be implemented if the necessary regulatory approvals are obtained and the participating agencies comply with provisions of the California Environmental Quality Act. This order directs Los Angeles to: (1) proceed with obtaining the necessary approvals for implementation of the proposed controlled burning program; and (2) to provide the SWRCB Chief of the Division of Water Rights with a copy of any environmental documentation for the program. Following review of the environmental documentation, the Chief of the Division of Water Rights may direct Los Angeles to proceed with implementation of the controlled burning program pursuant to the requirements of Decision 1631. This order also authorizes the Chief of the Division of Water Rights to modify requirements related to the controlled burning program in the event that the necessary permits cannot be obtained, there is evidence the burning may cause significant adverse environmental effects or damage to nearby property, or other information indicates that the program should be revised.
The waterfowl scientists' report states that "Salt Cedar . . . has the potential to negatively impact riparian and lake-fringing wetlands in the basin." (R-DWP-20, Appendix 1, p. 72.) Based on the waterfowl scientists' recommendations, the Los Angeles plan states that Los Angeles will assist and participate in a joint approach to the control of Salt Cedar and other exotic (i.e., non-native) plant species. (R-DWP-20, p. 27.) The SWRCB agrees with Los Angeles that other agencies with land management responsibilities in the Mono Basin should share in the obligation to control harmful exotic species. In the event that an interagency program to control exotic species in the Mono Basin is developed, this order directs Los Angeles to participate in the interagency efforts and to manage Los Angeles' land in the Mono Basin accordance with the provisions of the interagency exotic species control program.
Decision 1631 required that the waterfowl habitat restoration plan include a method for monitoring the results and progress of habitat restoration projects. (Decision 1631, pp. 206 and 207.) The information developed through the monitoring program can be used to evaluate the results of increased streamflows, rising lake levels, waterfowl habitat restoration measures required by this order, and waterfowl habitat restoration efforts undertaken by other agencies and landowners in the Mono Basin.
(1) Hydrologic data including lake elevation data, stream flows and spring surveys.
(2) Lake limnology and secondary producers, including data on phytoplanton and brine shrimp population levels, as well as meteorological data and data on the physical and chemical environment of Mono Lake.
(3) Vegetation in riparian and lake-fringing wetlands. The plan proposes establishment of vegetation transects in lake-fringing wetlands and the establishment of photo points on permanent vegetation transects. The plan also proposes aerial photographs to be taken every five years.
The proposed monitoring activities are either already underway or are scheduled to begin during the first year after SWRCB approval of restoration plans. The estimated cost of the monitoring program is $140,000 per year, including $80,000 per year for monitoring of lake limnology and secondary producers.
An issue arose during the hearing regarding whether the monitoring program should be required to include alkali fly populations at Mono Lake. Decision 1631 concluded that a water level in Mono Lake at or near 6,390 feet will maintain the aquatic productivity of Mono Lake (including alkali flies) in good condition. (Decision 1631, p. 82.) The record from the 1997 hearing provides no basis for changing that conclusion. Therefore, this order does not direct Los Angeles to add alkali flies to the other monitoring work which it has proposed.
In view of the rapidly changing conditions in the Mono Basin, aerial photography of vegetation performed at five year intervals would not be sufficient for evaluation of more rapid changes and would be of limited value for use in adaptive management of ongoing restoration activities by Los Angeles or others. Annual aerial photography of waterfowl habitats also would provide more complete information for use in the waterfowl population studies proposed by Los Angeles.
In summary, the waterfowl habitat restoration monitoring plan presented by Los Angeles will provide useful information for evaluating the effect of changes in the Mono Lake area and planning future restoration activities accordingly. However, the plan proposed by Los Angeles should be modified to include annual aerial photography of waterfowl habitat areas for use in the waterfowl population surveys and for use in documenting the annual vegetative changes. Footnote42 With that modification, the SWRCB believes that the waterfowl habitat monitoring plan is adequate and should be implemented upon entry of this order. If information developed through the monitoring plan shows a need for changes in monitoring activities, this order provides that requests for such changes may be submitted to the Chief of the Division of Water Rights.
As anticipated in Decision 1631, the record continues to reflect general agreement that the rising water level at Mono Lake will provide the largest increase in future waterfowl habitat in the Mono Basin. Footnote43 An average lake level of 6,392 feet and the streamflows required under Decision 1631 will result in large hypopycnal areas at the mouths of Rush Creek and Lee Vining Creek, new "hypopycnal rias" or lagoons extending back up the streams away from the lake, brackish water lagoons in some areas, and increased wetland and riparian areas along the streams. That process is occurring and will continue to occur pursuant to the provisions of Decision 1631.
The record also shows that the completion of the DeChambeau Ponds Enhancement Project and irrigation on the DeChambeau Ranch following USFS repairs to the DeChambeau Ditch in 1997 should increase the amount of fresh water waterfowl habitat in the Mono Basin from what was available when Decision 1631 was entered. This order directs Los Angeles to provide financial assistance for additional waterfowl habitat restoration work at the County Ponds and Black Point areas or other property in lake fringing wetland areas.
Numerous other waterfowl habitat restoration or enhancement projects are addressed in the testimony and exhibits. The SWRCB finds that the proposal to rewater the Rush Creek distributaries meets the criteria established in Decision 1631 to propose specific, reasonable, and feasible restoration measures with minimal potential for adverse environmental effects. In addition, this order directs Los Angeles to take steps necessary for implementation of a controlled burning program and to participate in interagency efforts to control Salt Cedar and other exotic plants if a basin-wide project is developed. Finally, the SWRCB finds that a comprehensive waterfowl and waterfowl habitat monitoring program will be useful in evaluating changing conditions for waterfowl in the Mono Basin due to the actions of Los Angeles and others. The monitoring program required by this order will also provide information which may be helpful for adjusting ongoing actions and planning future activities in a manner beneficial to waterfowl.
Based on recommendations in the waterfowl scientists' report regarding Mill Creek, Los Angeles filed Water Right Application 30565 to appropriate water from Wilson Creek and return it to Mill Creek for instream uses in that stream. The desirability of establishing waterfowl habitat along Mill Creek at the cost of reduced flows in Wilson Creek is an extremely complicated issue which cannot be resolved in the present proceeding, and which goes beyond considerations regarding waterfowl habitat. In any event, DFG contends that it is the appropriate agency to hold the water right application for restoration of flow in Mill Creek. (R-DFG-5, Attachment dated 4/8/96, p. 13.) The SWRCB recognizes that the Legislature has designated DFG as the state agency with authority and responsibility to undertake various wildlife habitat programs of the type that might benefit from providing additional flow to Mill Creek. Therefore, in this instance, the SWRCB concludes that, upon request of DFG, it would be appropriate for Los Angeles to assign Application 30565 to DFG for possible use in any Mill Creek restoration project which DFG may decide to pursue. As announced at the beginning of the hearing, issues regarding the merits of Application 30565 and potential approval of the application are not before the SWRCB in this proceeding.
Decision 1631 substantially resolved the long-standing debate over imposing restrictions on water diversions from the Mono Basin in order to protect environmental and public trust resources. In recent years, attention has shifted to examining other actions that could be taken to help restore various resources damaged through years of water diversions and in-basin development. The focus of this order is on the still narrower issue of determining the stream and waterfowl habitat restoration measures that Los Angeles should be required to implement or participate in under the provisions of Decision 1631 which amended the conditions governing Los Angeles' diversion of water under Licenses 10191 and 10192.
Just as the nature of the debate has evolved over the years, so too has the orientation and identity of the participants. All of the participants in the 1997 hearing were concerned with how best to restore Mono Basin streams and waterfowl habitat. Footnote44 The record reflects a large degree of consensus regarding the stream restoration measures to be pursued by Los Angeles. None of the participants in the SWRCB hearing are on record as opposing the stream restoration aspects of the proposed settlement agreement. That proposal relies primarily on stream restoration and recovery occurring through natural processes with periodic high flows and proper land management to assist the recovery process. Based on the record before us, the SWRCB concludes that the stream restoration plan described in the settlement proposal, as modified by the provisions of this order, is in compliance with the criteria established in Decision 1631.
In order to avoid confusion with the channel maintenance flows established in Decision 1631, the higher flows required under this order for stream restoration purposes are referred to as "stream restoration flows." The stream restoration flows required under this order will apply on an interim basis pending future review by the SWRCB of the status of the stream restoration program. At that time, the SWRCB can determine whether it is appropriate to revise any of the long-term flow requirements established in Decision 1631. In addition, this order establishes qualitative criteria for use in determining when the stream restoration program may be terminated.
In contrast to the general consensus on stream restoration work, the record shows heated disagreement over the recommendations in the waterfowl scientists' report, the waterfowl habitat restoration plan submitted by Los Angeles and the "Waterfowl Habitat Restoration Foundation Conceptual Agreement" referred to in the proposed settlement. (R-DWP-68 and 68A.) The plan originally submitted by Los Angeles and the proposed settlement have generated stringent opposition from numerous individuals, local agencies and organizations, and witnesses with considerable expertise and many years of knowledge regarding conditions in the Mono Basin.
As discussed in Sections 6.0 through 6.5, the proposed approach to waterfowl habitat restoration reflected in the conceptual agreement and some of the waterfowl habitat restoration proposals presented in the original Los Angeles plan do not comply with the requirements of Decision 1631. Consequently, this order does not require implementation of all proposals addressed in the conceptual agreement or the original Los Angeles waterfowl habitat restoration plan. However, the extensive information developed in the preparation of the Los Angeles plan, together with the evidence presented at the hearing, provide a sufficient basis for the SWRCB to determine waterfowl habitat restoration measures which will comply with Decision 1631.
As recognized in the three waterfowl scientists' report and confirmed by other evidence in the record, by far the most significant restoration of waterfowl habitat in the Mono Basin will occur due to the rising water elevation at Mono Lake and the restoration of flows in the tributary streams as required by Decision 1631. The additional waterfowl habitat restoration measures to be undertaken pursuant to this order include: (1) reopening distributary channels in the Rush Creek bottomlands; (2) providing financial assistance for restoration of waterfowl habitat at County Ponds and Black Point or other lake-fringing wetland areas; (3) participation in a controlled burning program subject to applicable permitting and environmental review requirements; (4) participation in exotic species control efforts if an interagency program is established in the Mono Basin; and (5) a comprehensive waterfowl and waterfowl habitat monitoring program.
This order does not require Los Angeles to pursue proposals to rewater Mill Creek or to pursue other proposals to alter the historic uses of water presently in Wilson Creek. Those proposals could involve sweeping changes in established land management practices on public and private property and substantial changes in the exercise of established water rights held by parties not subject to SWRCB jurisdiction in the present proceeding. Any proposal to significantly alter the distribution of flows between Mill Creek and Wilson Creek must be preceded by an appropriate environmental document which fully addresses potential environmental impacts. In accordance with Water Code sections 174, 275, and 1200 et seq., and article X, section 2 of the California Constitution, the SWRCB has authority to review the environmental impacts, public interest considerations, and reasonableness of any future proposals to restore flows to Mill Creek by diversion of water presently used elsewhere.
In accordance with Decision 1631 and the findings above, and in the exercise of its continuing authority over Licenses 10191 and 10192, the SWRCB approves the elements of the stream restoration and waterfowl habitat restoration proposals described below and concludes that Los Angeles should be required to implement the specified measures pursuant to the provisions of this order.
(1) Until the water elevation in Mono Lake initially reaches 6392 feet, Licensee shall provide SRFs in Rush Creek in the amounts and for the times specified in Table 1 attached to this order. Licensee need not provide any SRFs in dry years. In addition, Licensee may reduce the SRFs in dry/normal and normal years to the extent necessary to maintain the water exports allowed by Decision 1631. In dry/normal and normal years , Licensee shall seek to have between 30,000 and 35,000 acre-feet of water in storage in Grant Lake at the beginning and the end of the run-off year. Licensee is not required to reduce storage in Grant Lake below 11,500 acre-feet in order to provide SRFs.
(2) After the water level in Mono Lake reaches 6392 feet, Licensee shall provide SRFs in Rush Creek, Lee Vining Creek, Parker Creek, and Walker Creek as set forth in Table 2. SRFs required under this paragraph shall remain in effect until the State Water Resources Control Board determines that the specified flows are no longer needed for stream restoration purposes. Upon termination of the SRFs required pursuant to this order, it may be necessary to modify the channel maintenance and flushing flows established in Decision 1631.
(3) The SRFs specified in this order are minimum flows and are in addition to the flow requirements set forth in Decision 1631. Licensee shall in all years attempt to maximize SRFs through coordination with Southern California Edison (SCE) and may encourage SCE to coordinate their spills and releases with spills from Grant Lake. Licensee's coordination with SCE may include granting SCE waivers from the 5 percent storage rule otherwise applicable to SCE facilities, developing annual operation plans in consultation with SCE, and encouraging SCE to coordinate the release of excess water from Tioga Lake with peak flows in Lee Vining Creek. In wet and extreme wet years, Licensee shall attempt to maximize SRFs in Rush Creek through operation of Grant Lake to maximize the probability and magnitude of spills with a target of holding 40,000 acre-feet of water in storage at Grant Lake on April 1. If Licensee is unable to achieve this target, it shall provide a written explanation to the Chief of the Division of Water Rights, and to other parties upon request, by May 1 of each year.
(4) Licensee shall not irrigate from Parker Creek and Walker Creek when providing SRFs in Rush Creek. If Licensee can anticipate peak flows in Parker Creek and Walker Creek, it shall not irrigate from Parker Creek during SRFs in Parker Creek or from Walker Creek during SRFs in Walker Creek. Licensee shall use its best efforts to anticipate peak flows in Parker Creek and Walker Creek.
(1) Licensee shall fund and implement a stream monitoring program to be carried out under the direction Bill Trush, Chris Hunter and such other independent scientists as may be approved by the Chief of the Division of Water Rights. Any member of the stream monitoring team may be replaced upon approval of the Chief of the Division of Water Rights.
(a) The stream monitoring team shall evaluate and make recommendations, based on the results of the monitoring program, regarding the magnitude, duration and frequency of the SRFs necessary for the restoration of Rush Creek; and the need for a Grant Lake bypass to reliably achieve the flows needed for restoration of Rush Creek below its confluence with the Rush Creek Return Ditch. This evaluation shall take place after two data gathering cycles (as defined in the stream monitoring plan), but at no less than 8 years nor more than 10 years after the monitoring program begins. Licensee shall implement the recommendation of the monitoring team unless it determines that the recommendation is not feasible. Licensee shall have 120 days after receiving the recommendation from the monitoring team to determine whether to implement the recommendation of the monitoring team. If any party disagrees with Licensee's determination regarding implementation of the monitoring team's recommendation, the party may request review by the Chief of the Division of Water Rights who shall then decide the matter.
(b) The stream monitoring team shall evaluate the effect on Lee Vining Creek of augmenting Rush Creek flows with up to 150 cubic feet per second (cfs) of water from Lee Vining Creek in order to provide SRFs. The stream monitoring team shall also evaluate: (1) the reliability of attaining the specified SRFs in Rush Creek through augmentation with water from Lee Vining Creek; and (2) the need for a Grant Lake outlet after consideration of relevant factors including any material adverse impacts on Lee Vining Creek and reliability of providing SRFs in Rush Creek. Licensee shall implement the recommendation of the monitoring team unless it determines that the recommendation is not feasible. Licensee will have 120 days after receiving the monitoring team's recommendation to make this determination. If any party disagrees with Licensee's determination, the party may request review by the Chief of the Division of Water Rights who shall then decide the matter.
(c) The stream monitoring team shall prepare a written annual report by December 31 of each year which evaluates the results of the stream monitoring program and recommends any proposed changes in the stream restoration program and monitoring program. Among other things, this report shall include a quantitative comparison in chart or comparable form of the criteria specified in paragraph (5) below and the corresponding conditions measured in each stream for that year. The report shall discuss the progress since the start of the monitoring program toward achievement of the specified criteria on each stream. To the extent reliable information is available, the report shall also include a comparison with the stream conditions in existence prior to 1941 and the stream conditions in existence prior to resumption of flows in Rush Creek in 1983, Lee Vining Creek in 1986, Walker Creek in 1990, and Parker Creek in 1990. The report shall be provided upon request and without charge to any of the parties to the hearing which preceded this order.
(d) The stream monitoring team shall develop and implement a means for counting or evaluating the number, weights, lengths and ages of fish present in various reaches of Rush Creek, Lee Vining Creek, Parker Creek and Walker Creek.
(e) The stream monitoring team shall make a recommendation to the State Water Resources Control Board regarding any recommended actions to preserve and protect the streams.
c. Rush Creek Return Ditch: Licensee shall upgrade the Rush Creek Return Ditch as specified in Licensee's Stream and Stream Channel Restoration Plan without the long-term loss of fish habitat in the ditch.
d. Large Woody Debris: Licensee shall implement the provisions in the Stream and Stream Channel Restoration Plan for placement of large woody debris. Thereafter, Licensee shall add large woody debris to Rush Creek and Lee Vining Creek on an opportunistic basis, based on recommendations of the stream monitoring team.
e. Reopening Channels: If channels reopened through restoration efforts become closed, the monitoring team shall decide on a case by case basis whether or not to again reopen them. Licensee shall implement the monitoring team's decisions subject to compliance with Fish and Game Code section 1601 et seq.
f. Sediment Bypass: Licensee shall hire experts approved by the Chief of the Division of Water Rights to analyze and design sediment bypass systems for Licensee's diversion structures on Walker Creek, Parker Creek, and Lee Vining Creek. The systems shall be designed to bypass sediment on a year round basis. The experts shall also evaluate fish passage and the feasibility of rewatering Parker Creek and Walker Creek distributaries. The conceptual analysis and design, and the experts' recommendations, shall be completed as soon as practicable, but no later than March 1, 2000. Licensee shall have 120 days from receipt of the conceptual analysis and design to advise the Chief of the Division of Water Rights which sediment passage facilities it will construct. Facilities for Lee Vining Creek shall be included in the Licensee's proposal. If any party to the Mono Lake Settlement Agreement disagrees with Licensee's decision, then that party may ask the Chief of the Division of Water Rights to determine what sediment bypass facilities shall be constructed and to advise Licensee and other interested parties accordingly. Licensee shall comply with the determination of the Chief of the Division of Water Rights.
a. In years when flows in Rush Creek, Lee Vining Creek, Parker Creek, and Walker Creek exceed the minimum flows required under Decision 1631 and this order, Licensee shall regulate those flows, to the extent practicable, in a manner which reflects the impaired natural hydrograph for each stream at Licensee's point of diversion as specified in Table 1 on page x of the February 29, 1996 Grant Lake Operations and Management Plan. Nothing in this paragraph shall affect the minimum instream flows required by Decision 1631, the SRFs as required by this order, or Licensee's attempt to maximize the SRFs pursuant to the provisions of this order.
b. Licensee shall make reasonable efforts to maintain flows in Rush Creek between October 1 and March 31 below 70 cubic feet per second in order to avoid potential injury to the Rush Creek fishery. The Chief of the Division of Water Rights may revise or eliminate this requirement upon written recommendation of the Department of Fish and Game or based upon other evidence that the requirement is no longer needed.
c. Licensee shall make data from all existing Mono Basin data collection facilities available on a same day basis on an internet web site. Licensee shall retrofit all its existing Mono Basin data collection facilities as necessary in order to comply with this requirement.
3. Licensee shall prepare an annual operations plan for covering its proposed water diversions and releases in the Mono Basin in accordance with the provisions on pages 103 and 104 of the February 29, 1996, Grant Lake Operations and Management Plan. If for any reason, Licensee believes it cannot meet the flow requirements specified in this order, it shall provide a written explanation to the Chief of the Division of Water Rights by May 1 of each year and shall inform the Chief of the Division of Water Rights of the flows that will be provided. If unanticipated events prevent Licensee from meeting the flow requirements specified in this order, it shall notify the Chief of the Division of Water Rights within 20 days and provide a written explanation of why the requirement was not met.
a. Licensee shall implement the proposal to rewater distributary stream channels of Rush Creek in accordance with the provisions of its Mono Basin Waterfowl Habitat Restoration Plan dated February 29, 1996.
b. Upon request of the United States Forest Service (USFS), Licensee shall provide financial assistance in an amount up to $250,000 for repairs and improvements to surface water diversion and distribution facilities and related work to restore or improve waterfowl habitat on USFS land in the County Ponds area. Upon request of the USFS, Licensee shall also provide financial assistance in an amount up to $25,000 for waterfowl habitat improvements on USFS land in the Black Point area. This order does not require Licensee to assume responsibility for management or decisions regarding management of federal land, nor does it require Licensee to pay for any environmental review or studies undertaken by the USFS in accordance with its land management decisions and responsibilities. The financial assistance to the USFS required by this order is limited to funds needed to perform work which the USFS determines is appropriate to improve its water diversion and distribution facilities and related work to restore or improve waterfowl habitat in the County Ponds and/or Black Point areas.
(1) In the event that the USFS does not decide prior to December 31, 2004, to undertake waterfowl habitat restoration in the County Ponds area, and in the event that relevant state and federal agencies determine that shallow scrapes or other unobtrusive projects may be undertaken on wetland areas adjoining Mono Lake, then Licensee shall provide financial assistance in an amount up to $250,000 for unobtrusive lake-fringing waterfowl habitat restoration projects having all necessary state and/or federal approvals.
(2) In the event that the USFS does not decide prior to December 31, 2004, to undertake waterfowl habitat restoration at in the Black Point area, and in the event that relevant state and federal agencies determine that shallow scrapes or other unobtrusive projects may be undertaken on wetland areas adjoining Mono Lake, then Licensee shall provide financial assistance in an amount up to $25,000 for unobtrusive lake-fringing waterfowl habitat restoration projects having all necessary state and/or federal approvals.
(3) In the event that waterfowl habitat restoration projects at County Ponds and Black Point are completed at a cost to Licensee of less than $275,000, then Licensee shall make the remaining funds available to provide financial assistance for shallow scrapes or other unobtrusive waterfowl habitat projects which may be undertaken on wetland areas adjoining Mono Lake and which have all necessary state and/or federal approvals.
c. Licensee shall proceed with obtaining the necessary permits and approvals for the prescribed burning program described in its Mono Basin Waterfowl Habitat Restoration Plan dated February 29, 1996, and Licensee shall provide the SWRCB Chief of the Division of Water Rights a copy of any environmental documentation for the program. Following review of the environmental documentation, the Chief of the Division of Water Rights may direct Los Angeles to proceed with implementation of the prescribed burning program pursuant to the requirements of Decision 1631 and this order. The Chief of the Division of Water Rights may modify the requirements related to the prescribed burning program in the event that necessary permits cannot be obtained, there is evidence the burning may cause significant adverse environmental effects or damage to nearby property, or other information indicates that the program should be modified.
(1) The waterfowl and waterfowl habitat monitoring program shall be carried out under the direction of a waterfowl expert or experts approved by the Chief of the Division of Water Rights.
(2) The monitoring program shall include monitoring of hydrology, lake limnology and secondary producers, vegetation in riparian and lake-fringing wetland habitat, and waterfowl population surveys and studies in accordance with the provisions of the Waterfowl Habitat Restoration Plan dated February 29, 1996. Licensee shall also undertake annual aerial photography sufficient for use in annual waterfowl population studies and sufficient to identify annual changes in vegetation in waterfowl habitat areas. The aerial photography for waterfowl population studies shall include waterfowl in the Mono Basin, at Bridgeport Reservoir, and at Crowley Lake. The frequency of aerial photography can be modified upon a determination by the Chief of the Division of Water Rights that less frequent aerial photography is appropriate. Licensee shall provide data in a format compatible for use with Geographic Information Systems (GIS).
(3) Licensee shall file a report by April 1 of each year on: the status of Mono Basin waterfowl habitat restoration projects undertaken by the Licensee and others; the recovery of waterfowl habitat resulting from the stream flows and rising lake level due to limitations on water diversions imposed by Decision 1631; the results of waterfowl population surveys and studies called for in Licensee's Waterfowl Habitat Restoration Plan; and other information relevant to the recovery or restoration of waterfowl and waterfowl habitat in the Mono Basin. The report shall be filed with the Chief of the Division of Water Rights and shall be provided upon request and without cost to any governmental agency with land management or regulatory responsibilities in the Mono Basin and to any of the parties to the hearing which preceded this order.
e. In the event that an interagency program is established for the control or elimination of Salt Cedar or other non-native vegetation deemed harmful to waterfowl habitat in the Mono Basin, Licensee shall participate in that program and shall report on any work which it undertakes to control Salt Cedar or other non-native vegetation. Licensee's report on work undertaken to control Salt Cedar or other non-native vegetation shall be included as a part of the annual report on waterfowl habitat restoration projects filed with the Chief of the Division of Water Rights.
5. Any disputes regarding interpretation or compliance with the requirements of this order may be resolved by the Chief of the Division of Water Rights. Upon a showing of good cause, the Chief of the Division of Water Rights shall have the discretion and authority to modify provisions of this order regarding measures for restoration of streams and waterfowl habitat in the Mono Basin, provided that the Chief of the Division of Water Rights shall promptly advise the State Water Resources Control Board of any such action(s). All actions by the Chief of the Division of Water Rights taken pursuant to this paragraph are subject to review by the State Water Resources Control Board and shall be preceded by notice to the parties and opportunity for comment. In the event of a decision requiring action prior to providing an opportunity for comment, the Chief of the Division of Waters Rights shall promptly notify the parties and provide an opportunity for comment on the action which was taken. The Chief of the Division of Water Rights shall advise the State Water Resources Control Board regarding when it would be appropriate to schedule a hearing to determine when the stream and waterfowl habitat restoration measures required under this order may be deemed complete.
6. Licensee shall serve as lead agency for purposes of conducting the environmental review of programs or actions which it intends to carry out pursuant to the provisions of this order, in accordance with the provisions of the California Environmental Quality Act (CEQA, Public Resources Code section 21000 et seq.). Licensee shall prepare a negative declaration, mitigated negative declaration, or environmental impact report for any projects it proposes to carry out which it determines are not categorically exempt from CEQA, and shall submit a copy of relevant environmental documents to the Chief of the Division of Water Rights. The Chief of the Division of Water Rights shall review any environmental document(s) submitted by Licensee. Licensee shall not proceed with any project which is not exempt from CEQA prior to: (1) notification that the Chief of the Division of Water Rights has reviewed the environmental document; and (2) notification from the Chief of the Division of Water Rights to proceed with the specified project in accordance with: the provisions of Decision 1631 and this order, any mitigation measures proposed by Licensee, and any other mitigation measures determined to be necessary by the Chief of the Division of Water Rights.
7. In the event Licensee provides financial assistance for waterfowl habitat restoration projects proposed by another governmental agency pursuant to the provisions of this order, Licensee shall not assume the environmental review responsibilities of the agency proposing the project. Prior to providing financial assistance pursuant to the provisions of this order for projects proposed by another governmental agency, Licensee shall inform the Chief of the Division of Water Rights of the specific project for which financial assistance is to be provided and shall provide a copy of relevant environmental documents to the Chief of the Division of Water Rights. The Chief of the Division of Water Rights shall review any environmental document(s) submitted by Licensee. Licensee shall not provide financial assistance for projects pursuant to this order prior to: (1) notification that the Chief of the Division of Water Rights has reviewed the environmental document; and (2) notification from the Chief of the Division of Water Rights that the proposed project is consistent with the requirements of Decision 1631 and this order.
The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of an order duly and regularly adopted at a meeting of the State Water Resources Control Board held on September 2, 1998.
2 The Settlement Agreement identifies the above flows as "Channel Maintenance Flows." This order refers to the flows above as "Stream Restoration Flows" (SRFs) in order to distinguish between the flows required for stream restoration under this order and the Channel Maintenance Flows required by Decision 1631. The SRFs specified above are required during the transition period until Mono Lake reaches 6,392 feet. After Mono Lake reaches 6,392 feet, the SRFs in all four streams are as set out in Table 2. In Dry/Normal and Normal years, SRFs may be reduced to the extent necessary to maintain the quantity of water exports allowed under the provisions of Decision 1631. In Dry/Normal and Normal years, Licensee will attempt to hold 30,000 to 35,000 acre-feet in storage in Grant Lake at the beginning and end of the runoff year and will not be required to release water for SRFs that would reduce Grant Lake storage to below 11,500 acre-feet.
3 Rush Creek SRFs may be augmented with Lee Vining Creek diversions (up to 50 cfs) in Wet-Normal, (up to 100 cfs) in Wet, and (up to 150 cfs) Extreme Wet years. If water is diverted from Lee Vining Creek to augment Rush Creek SRFs , the diversions should not start less than 7 days after the peak flow in Lee Vining Creek has been attained and the diversions should continue, exclusive of ramping, for a maximum of 15 days in Extreme Wet and Wet runoff years, and a maximum of 5 days in Wet/Normal runoff years. There shall be no diversion of Lee Vining Creek water to augment Rush Creek SRFs during Normal, Dry/Normal and Dry runoff years.
4 Walker and Parker Creeks shall be allowed to flow without any diversions, either for irrigation from above or below the Lee Vining conduit or into the Lee Vining conduit during the period when Rush Creek SRFs are being made.
2 The Settlement Agreement identifies the above flows as "Channel Maintenance Flows." This order refers to the flows above as "Stream Restoration Flows" (SRFs) in order to distinguish between the flows required for stream restoration under this order and the Channel Maintenance Flows required by Decision 1631. The SRFs represented in this table (Table 2) are required to be provided after Mono Lake reaches 6,392 feet. All flows in Table 2 are subject to modification by the SWRCB. Based on results of the monitoring program, it may also be necessary to modify the Channel Maintenance Flows established by Decision 1631.
3 Rush Creek SRFs may be augmented with Lee Vining Creek diversions (up to 50 cfs) in Wet/Normal, (up to 100 cfs) in Wet, and (up to 150 cfs) in Extreme Wet years. If water is diverted from Lee Vining Creek to augment Rush Creek SRFs, the diversions should not start less than 7 days after the peak flow in Lee Vining Creek has been attained and the diversions should continue, exclusive of ramping, for a maximum of 15 days in Extreme Wet and Wet runoff years and a maximum of 5 days in Wet/Normal runoff years, after which the Lee Vining Creek flows should no longer be diverted to augment Rush Creek SRFs. There shall be no diversion of Lee Vining Creek water to augment Rush Creek SRFs during Normal, Dry/Normal and Dry runoff years. Walker and Parker Creeks shall be allowed to flow without any diversions, either for irrigation from above or below the Lee Vining conduit or into the Lee Vining conduit during the period when Rush Creek SRFs are being made.
4 SRF releases for Rush Creek in Normal years are based on criteria in the Grant Lake Operations and Management Plan for bifurcating the Normal water year type (based on the May 1 runoff forecast) into a Normal I water year type (82.5% to less than or equal to 95% of average runoff) and a Normal II water year type (greater than 95% to less than or equal to 107% of average runoff).
The SWRCB selected a target average water elevation of 6,392 feet following a balancing of competing public trust uses, as well as consideration of water use for municipal purposes. Decision 1631 specifically recognizes that "[a] lake level of 6,405 feet would not be consistent with the objectives of preserving public access to the most frequently visited tufa sites and continuing to make tufa structures at Mono Lake widely and conveniently accessible to public view." (Decision 1631, p. 154.) In view of the fact that a target lake level of 6,405 feet was rejected based in part upon the desire to protect frequently visited tufa sites, and in view of the uncertainty about waterfowl populations in the interior portion of the Pacific Flyway, Decision 1631 does not require Los Angeles to fully mitigate for the difference between the amount of waterfowl habitat expected at a water level of 6,405 feet and the amount expected to exist at the target lake elevation of 6,392 feet.
Mr. Frank Hazleton submitted a written closing statement on behalf of Arcularius Ranch and Inaja Land Company which requests that any further SWRCB orders be considered "in light of the base and minimum commitments extended to the Upper Owens River through Decision 1631 and the Grant Lake Operations and Management Plan as submitted by LADWP in February, 1996."
Hydro Electric Co. v. J. A Conway, et al., (1914) Mono County, Superior Court No. 2088.
Future proposals to change the use of the Conway Ranch water rights would fall within the Mono County Superior Court's jurisdiction over the Mill Creek adjudication or within the jurisdiction of the SWRCB pursuant to Water Code section 1707.
As discussed in Sections 6.1 through 6.3 below, various parties have also proposed measures intended to restore the lower portion of Mill Creek at the north end of the Mono Basin based on the rationale that restoration of Mill Creek would result in more waterfowl habitat. Since Los Angeles diverts no water from Mill Creek under Licenses 10191 and 10192, it was not required to consider restoration proposals for Mill Creek as part of the stream restoration plan required by Decision 1631.
Based on evidence presented by DFG, Decision 1631 established specified flow requirements for channel maintenance purposes in each of the four streams from which Los Angeles diverts water. The stream restoration plan submitted by Los Angeles proposes higher short-duration flows for the purpose of imitating the high seasonal flows that ordinarily would occur under natural conditions. The higher flows proposed in the Los Angeles plan are also referred to as "channel maintenance flows." In order to avoid confusion with the channel maintenance flow requirements established in Decision 1631, this order refers to the periodic high flows which are proposed for stream restoration purposes as "stream restoration flows."
"Limiter logs" are logs that were artificially placed in the stream channel of Lee Vining Creek as part of the interim stream restoration work undertaken by the Restoration Technical Committee which was formed under the authority of the Superior Court. Use of limiter logs and other structural or mechanical approaches to stream restoration of the Mono Basin streams were less successful than anticipated when those measures were undertaken.
As explained in Section 5.3.1 below, the flows provided for stream restoration purposes may differ from flows needed for channel maintenance on a long-term basis. The proposed settlement uses the term "channel maintenance flow" to describe both the higher flows proposed in the settlement agreement for stream restoration, and the long-term channel maintenance flows established in Decision 1631.
Depending upon the stream and the water year type, the higher flows for stream restoration purposes called for in the proposed settlement agreement are often higher than the flows called for in the stream restoration plan and Grant Lake Operations and Management Plan submitted by Los Angeles.
Decision 1631 found that the water elevation of Mono Lake was expected to reach 6,391 feet in approximately 18 to 28 years depending upon future hydrology. (Decision 1631, P. 158.) If the water level does not reach 6,391 feet by September 28, 2014, Decision 1631 calls for the SWRCB to consider if further revisions to the conditions in Los Angeles' licenses are appropriate. Decision 1631 sets water diversion criteria intended to result in a long-term average water elevation in Mono Lake of 6,392 feet. In the event the water elevation at Mono Lake has reached 6,391 feet by 2014, Decision 1631 does not require a further hearing.
The water year classifications referred to in the proposed settlement are based on the classifications set forth in the Grant Lake Operation and Management Plan. (R-DWP-18, p. 88, Table T.) During the period before Mono Lake reaches 6,392 feet, the primary effect of the stream restoration flows is expected to be on the way in which available water is released in order to promote channel recovery and restoration, rather than on the amount of water available for export.
Decision 1631 called for development of stream and waterfowl habitat restoration proposals which are consistent with the streamflows and lake levels established in that decision. (Decision 1631, p. 204.) Any long-term revision of the channel maintenance flow requirements established Decision 1631 would require an analysis of the effects of that revision on the water level of Mono Lake, public trust resources in the Mono Basin, and the quantity of water available for diversion under Licenses 10191 and 10192.
The evidence presented in the current proceeding and the proceedings leading to Decision 1631, which is extensive, establishes that it is impossible (and in some respects, undesirable) to restore the Mono Basin streams to the conditions which existed prior to when Los Angeles began its diversions in 1941. (See e.g., T 316:12-320:1.) Evidence of pre-1941 conditions may provide a helpful reference point, but neither Decision 1631 nor this order establishes "pre-1941 conditions" as the goal of the stream and waterfowl habitat restoration plans. (See R-DWP-17, Appendix 4, p. 2.) Although the stream conditions will be different than existed before 1941, there is considerable evidence in the record indicating that the flows and other requirements imposed by Decision 1631 and this order will result in a better fishery than existed prior to Los Angeles' diversions.
Decision 1631 required Los Angeles to "propose criteria for determining when monitoring shall be terminated." (Decision 1631, p. 207.) To the extent that this provision may have led interested parties to assume that quantified measurement(s) of various stream characteristics would be the only acceptable basis for eventual termination of the stream monitoring program, the SWRCB regrets the misunderstanding.
The Grant Lake Operations and Management Plan discusses the possibility of revisions to the pattern of water exports from the Mono Basin in order to maximize the beneficial use of water in the upper Owens River Basin. The plan proposes that any such changes would be made in consultation with the upper Owens River landowners and DFG. Any changes in the pattern of Mono Basin water exports which are not consistent with the provisions of Decision 1631 would require approval of the SWRCB.
In addition to issues regarding improper delegation of authority, the repeated requests for delay in the hearing which preceded this order demonstrate the problems and delay that would be inherent in establishing a procedure in which decisions or actions require the repeated agreement of numerous parties.
In contrast to long-standing disputes over the nature and extent of stream restoration work to be undertaken by Los Angeles, the subject of active waterfowl habitat restoration measures has not been the subject of litigation or court orders. Rather, the requirement to prepare a waterfowl habitat restoration plan originated with Decision 1631.
Section 6.4 below discusses the relationship between stream flows and the "hypopycnal conditions" which result where freshwater from tributary streams meets the saline water of Mono Lake.
The waterfowl scientists' report recommends no additional restoration projects for Lee Vining Creek other than continuing to provide the flows required under Decision 1631.
The specific projects through which "open-water habitat" would be restored or maintained have not been determined, nor is the acreage of proposed waterfowl habitat specified.
The conceptual agreement states that a final decision on rewatering Mill Creek will not be made prior to the conclusion of the CEQA/NEPA process. That process had not begun by the close of the hearing.
The proposal to rewater Mill Creek is discussed in greater detail in Section 6.4.2 below.
The SWRCB would have jurisdiction if the foundation proposes to initiate a new appropriation or petitions for a change subject to Water Code section 1707. Similarly, the California Regional Water Quality Control Board, Lahontan Region, would have jurisdiction over any discharge of water by the foundation. In the absence of a diversion or use of water by the foundation, however, the foundation is not subject to the SWRCB's continuing authority to apply public trust or reasonableness requirements, and the SWRCB would not be able to ensure that the funds provided to the foundation achieve the purposes of Decision 1631.
The phenomenon of "hypopycnal stratification" is discussed on page 96 of Decision 1631. It occurs in areas where the lighter freshwater from tributary streams meets the denser saline water of Mono Lake and forms a freshwater lens on top of the saline lake water.
Historically, the Rush Creek and Lee Vining Creek delta areas provided habitat for large numbers of ducks.
The hypopycnal area near the mouth of Mill Creek at the time that Los Angeles began its diversions in 1941 was already reduced from what it had been under natural conditions due to the diversion of flow from Mill Creek to Wilson Creek in the early 1900's. A detailed discussion of the projected hypopycnal conditions at an average lake elevation of 6,392 feet is presented in Exhibit R-SLC/DPR-401. That report states that "the Board-ordered flows down Rush and Lee Vining Creeks will largely restore the hypopycnal lenses that previously characterized Mono Lake in the vicinity of the stream mouths." The report also states that the hypopycnal lens near Rush Creek during October through December will be slightly smaller while the hypopycnal lens near Lee Vining Creek in the autumn will be more extensive. The report also discusses locations where significant increases in hypopycnal areas are projected but concludes that "the total amount of hypopycnal lake surface will remain below that which existed prior to 1941." (R-SLC/DPR-401, p. 59.) There is no evidence in the record that the size of hypopycnal areas projected to exist at lake elevation 6,392 feet will be insufficient to accommodate potential waterfowl populations.
Any disturbance of the channel of Rush Creek is subject to the requirement of a streambed alteration agreement with DFG pursuant to Fish and Game Code section 1603.
This order expresses no position regarding potential application of Fish and Game Code sections 5937 and 5946 to a proposal to substantially dewater an existing stream with a well-established fishery as part of a project which aims to restore flow to a natural stream which may have provided even better fish habitat several generations earlier.
The proposed settlement agreement recognized the need for further environmental review of potential proposals for restoration of Mill Creek.
If the proposal to rewater Mill Creek is pursued in the future, the specific environmental impacts of that proposal will have to be addressed in a detailed environmental impact report. There is evidence in the record that indicates it may be possible to increase the overall beneficial use of water presently in Wilson Creek. The SWRCB expresses no opinion on the question of whether overriding considerations might justify rewatering Mill Creek at the expense of resources currently dependent on Wilson Creek. The findings in this order are without prejudice to the SWRCB's review of future proposals that may come before the SWRCB.
The cooperative project which the USFS undertook to restore waterfowl habitat at the DeChambeau Ponds provides an example of institutional cooperation between the federal government, other levels of government and private groups to restore waterfowl habitat on USFS land in the Mono Basin.
Although this order directs that aerial photography be undertaken on an annual basis, it does not require other changes in the more detailed work proposed in Los Angeles' plan for assessing changes in vegetation.
Many of the stream restoration provisions specified in this order are based upon provisions of the "Mono Lake Settlement Agreement" which was marked for identification as Exhibit R-DWP-68. Any references to "party" or "parties" in the provisions of this order regarding stream restoration measures refer to the parties to the Mono Lake Settlement Agreement.
Information regarding conditions that existed prior to Los Angeles' diversions is set forth in Decision 1631.