Evading Avoiding
Background:
The goal of the LTWA is to "avoid" significant impacts while providing a reliable water supply to LA. In the EIR to the LTWA this is repeatedly re-phrased as an imperative: "…pumping will be managed to avoid ...(various impacts)", [emphasis added] (p. 5-14 City of Los Angeles Department of Water and Power and County of Inyo 1990) (pp. 2-11 & 2-12, City of Los Angeles Department of Water and Power and County of Inyo 1991). Other references to the requirement to "avoid" impacts are on pages 2-42 and 2-45 and descriptions of impact avoidance as a "primary goal" of the LTWA are found on 2-58 and 2-69 (City of Los Angeles Department of Water and Power and County of Inyo 1991).
Problem:
Notwithstanding the repeated references to impact avoidance as both a primary goal and a requirement as noted above, after signing the LTWA, DWP has repeatedly refused to acknowledge any responsibility to "avoid" impacts. Rather, it acknowledges only the LTWA's secondary goal of mitigation after impacts have occurred.
Examples:
The first example is in arguments submitted to arbitrators in the dispute over the running of the McNally Canals in 2000. In this case water tables under several parcels in the Laws wellfield were (and still are in 2004) below the rooting zones of the vegetation mapped in the baseline period and vegetative cover in the parcels was (and still is) below that mapped in the baseline period. After 10 years of these conditions, Inyo County asked that LADWP raise water tables on the grounds that this was necessary to avoid significant impacts as required by the LTWA (Inyo County 2000). LADWP chose to misconstrue Inyo County's claim as an "unfulfilled mitigation" (pg. 9, City of Los Angeles 2001) and argued that Inyo County had not followed the procedures in section I.C.1 of the Green Book for mitigating impacts after the fact. In making this rebuttal, LADWP made no reference to any responsibility to avoid impacts (a "primary goal" of the LTWA) and acknowledged only the responsibility to mitigate impacts after the fact, (a "secondary goal" of the LTWA) (p. 10-70, City of Los Angeles Department of Water and Power and County of Inyo 1990).
A second example is in arguments submitted to arbitrators in the dispute over the LADWP's proposed 2001 pumping plan. Inyo County again cited the requirement of management to avoid impacts (Inyo County 2001). This time, in its response, LADWP made its position much clearer:
"In short, the Agreement requires the City to consider impacts of its groundwater pumping before implementing the annual plan, but does not authorize Inyo to restrict or limit the City's pumping before the fact. The Agreement instead sets forth the method of determining after the fact whether an impact to vegetation has occurred which is measurable, significant, and attributable to groundwater pumping" [emphasis added] (p.2 City of Los Angeles 2001b).
LADWP in this statement eliminated the phrase "avoid impacts" and replaced it with "consider impacts". Just as in the McNally Canals case (cited above), LADWP acknowledged only an obligation to mitigate after the fact rather than an obligation to avoid impacts in the first place.
A third example is in response to comments in the Mitigated Negative Declaration for the Irrigation Project at Laws (Inyo County 2003). In response to a comment specifically citing DWP's refusal to acknowledge its responsibility for impact avoidance, DWP rephrased its obligation yet again. This time it asserted
"the Water Agreement established procedures for managing groundwater pumping in order to limit impacts to groundwater-dependent vegetation…"[emphasis added]
Once again LADWP could not bring itself to use the phrase "avoid impacts" notwithstanding the fact that impact avoidance is a "primary goal" of the LTWA (citation)
In three examples above LADWP acknowledged responsibility to "consider impacts" and "limit impacts" but not "avoid impacts," notwithstanding the repeated . Instead, it acknowledged an obligation to mitigate after the fact. It is instructive to compare LADWP's emphasis on mitigation after the fact to the importance assigned to mitigation in the EIR for the LTWA (p. 10-70, City of Los Angeles Department of Water and Power and County of Inyo 1990): "It should be emphasized that under the Agreement, mitigation is not a primary goal, but a secondary tool to be employed if the primary goals are not fully achieved" [emphasis added].
To our knowledge LADWP has never acknowledged in writing its obligation to avoid impacts in the 12 years since the LTWA was signed.
Significance of the issue
Impact avoidance is the heart of the LTWA. It is precisely because Owens Valley had suffered so much from LADWP's impact-inducing management practices from 1970-1990 that an agreement requiring impact-avoidance (i.e. the LTWA) was negotiated in first place. LADWP's consistent refusal over many years to even acknowledge, (much less implement) the LTWA's requirement for impact avoidance can only be described as bad faith of the highest order.
