Unfortunately, all of the documents referenced in the County's Reply and its appendices were not available in a format that could readily be loaded to this website. A complete copy of the Reply is available for review at the Inyo County Water Department office.
REPLY BY THE COUNTY OF INYO TO
LADWP’S RESPONSE TO NOTICE OF DISPUTE
INTRODUCTION
On October 13, 2000, in accordance with procedures set forth in the "Agreement Between the County of Inyo and the City of Los Angeles and its Department of Water and Power on a Long Term Groundwater Management Plan for Owens Valley and Inyo County" (hereinafter "Agreement") and with procedures approved by the Standing Committee, the County of Inyo (hereinafter "County") commenced dispute resolution on two issues by serving the City of Los Angeles Department of Water and Power (hereinafter "LADWP") with a "Notice of Dispute." (The Notice of Dispute is incorporated herein as is fully set forth.)
On June 16, 2001, LADWP provided the County with its "Response to Notice of Dispute" (hereinafter "LADWP Response"). Under the dispute resolution procedures that govern the dispute resolution process, the County may serve LADWP with a Reply to the LADWP Response by July 16, 2001. This document, and the attachments hereto, comprise the County’s Reply to the LADWP Response. The Standing Committee will conduct a Dispute Resolution Hearing on this dispute in the near future.
DATE, TIME AND PLACE OF STANDING COMMITTEE
DISPUTE RESOLUTION HEARING
The County and LADWP have agreed that the Standing Committee will conduct a Dispute Resolution Hearing on this dispute on a date on, or shortly after, August 20, 2001. (The County and LADWP have not agreed upon the exact date.) The Dispute Resolution hearing will be conducted in Owens Valley, California at a location to be determined. An agenda for the hearing will be posted in advance of the hearing as required by law.
AGENDA AND NOTICE OF STANDING COMMITTEE
DISPUTE RESOLUTION HEARING
A draft agenda for the meeting of the Standing Committee during which the Dispute Resolution Hearing will be conducted is Attachment 7 hereto.
SUMMARY OF THE COUNTY’S REPLY
The LADWP Response presents both procedural objections to the Notice of Dispute and challenges to the factual basis of the Notice of Dispute. In this document, the County presents its reply to LADWP’s procedural objections, and then presents its reply to LADWP’s non-procedural contentions and assertions.
EVIDENCE IN SUPPORT OF THE COUNTY’S REPLY
The evidence and testimony in support of the County’s reply are presented in this document and in the following attachments:
Addendum to Appendix 1 of the Notice of Dispute. (Hereinafter "Manning Addendum.") Appendix 1 is a report titled: Vegetation Information for Dispute Resolution Regarding Operation of the McNally Canals, by Sara J. Manning, Ph.D., Vegetation Scientist, Inyo County Water Department (October 11, 2000).
Addendum to Appendix 2 of the Notice of Dispute. (Hereinafter "Harrington Addendum.") Appendix 2 is a report titled: Laws Area Hydrology and Canal Operations, by Robert F. Harrington, Ph.D., Hydrologist, Inyo County Water Department (October 11, 2000).
Addendum to Appendix 3 of the Notice of Dispute. (Hereinafter "Steinwand Addendum.") Appendix 3 is a report titled: Synopsis of Soil Water/Groundwater Relations in the Laws Area and the Owens Valley, by Aaron L. Steinwand, Ph.D., CPSSc., Soil Scientist, Inyo County Water Department (October 11, 2000).
Draft 6, dated 6/14/00, of the Inyo County/Los Angeles Standing Committee Dispute Resolution Procedures.
Memorandum dated June 12, 2000 to the Inyo County Los Angeles Standing Committee from Inyo County Representatives that was included in the June 16, 2000 agenda of the Standing Committee in regard to Item 4.
Depth to Groundwater Beneath Vegetation Reinventory Parcels by Robert F. Harrington Ph.D., Hydrologist, Inyo County Water Department and Chris Howard, GIS specialist (June 15,2000). (Hereinafter "Harrington and Howard.")
Draft Agenda for August 2001 Standing Committee Meeting
Attached to the LADWP Response are the following:
A Review of the Report Titled "Laws Area Hydrology and Canal Operations" by R. Harrington, Inyo County Hydrologist and by Saeed Jorat, Ph.D., PE (June 14, 2001). (Hereinafter "Jorat.")
Discussion Following Review of Vegetation information for Dispute Resolution regarding operation of the McNally canals as prepared by Sara J. Manning, October 11, 2000 by Paula J. Hubbard, Watershed Resources Biologist, and David W. Martin, Ph.D., Plant Ecologist (June 12, 2001). (Hereinafter "Hubbard and Martin.")
REPLY TO PROCEDURAL CONTENTIONS OF LADWP
The LADWP Response alleges that the Notice of Dispute is not in conformance with draft Dispute Resolution Procedures approved by the Standing Committee that govern this dispute, and is not in conformance with procedures contained in the Agreement which are a condition precedent to invocation of dispute resolution. The LADWP Response contends that, because the Notice of Dispute is not in conformance with the identified procedures, this dispute is not ripe for Standing Committee review, and the County has failed to invoke and exhaust available administrative remedies prior to commencing dispute resolution. LADWP requests that the issues in dispute not be resolved, but instead, be referred, without prejudice, to the Technical Group.
The LADWP Response raises three procedural objections to proceeding with this dispute. As is explained below, these procedural objections are without merit. Each of the procedural contentions is described below followed by the County’s reply to the contention.
Contention 1
LADWP contends: (1) that the County seeks the implementation of mitigation for an adverse impact caused by LADWP’s groundwater and surface water operations in the Laws area; (2) the Agreement requires the Technical Group to make certain determinations concerning the need for mitigation, and if it determines that mitigation is needed, to develop a mitigation plan; and (3) the County has not requested the Technical Group to take such actions prior to submitting the dispute to the Standing Committee.
Reply 1
LADWP mischaracterizes the County’s requested action as a unilateral demand to implement a mitigation plan without following the procedures set forth in the Agreement. Undisputedly, the Agreement contains procedures that require the Technical Group to make determinations as to whether an impact is measurable, attributable to LADWP’s groundwater or surface water operations, and significant, and, if necessary, to develop a mitigation plan. However, the County’s request is that LADWP take reasonable and feasible action to avoid the need for a mitigation plan—not that LADWP implement a mitigation plan. This position is consistent with the Drought Recovery Policy (Appendix 6 to the Notice of Dispute), which expresses the Standing Committee’s desire to avoid creating impacts that would need to be mitigated by instead promoting recovery of groundwater and soil water conditions in the Owens Valley. Moreover, as shown below, the County’s requested action is in full conformance with the Agreement.
On page 20 of the Notice of Dispute, the action requested by the County in regard to Issue 1, is described as follows:
That it be determined that the operation of one or both of the McNally canals should be commenced during this runoff year, and continued as necessary, until perennial vegetation cover in parcels 52, 82 and 85 in the Laws area has recovered to baseline conditions.
As stated on page 2 of the County’s September 14, 2000 memorandum requesting the Standing Committee to resolve the two McNally canal issues (a copy of the memorandum is Attachment 12 to the Declaration of Peter Kavounas, LADWP Response), the County is not requesting the implementation of a mitigation plan, but instead, action to avoid the subsequent need to implement a mitigation plan:
At this point, the County believes that the Agreement requires LADWP to operate the McNally canals to promote water table recovery, allow for vegetation recovery, and to supply the remaining Type E and E/M project irrigation requirements in the Laws area. In the event that such operations of the McNally canals are not implemented, the County believes that a mitigation plan for the area should be implemented immediately. (Underlining added for emphasis.)
Therefore, instead of demanding a mitigation plan as contended by LADWP, the County’s request is for LADWP to take reasonable and feasible action to avoid the need for implementing a mitigation plan. As the County observed on page 4 of the Notice of Dispute:
The overall goal of managing the water resources within Inyo County is to avoid
certain described decreases and changes in vegetation and to cause no significant effect on the environment which cannot be acceptably mitigated while providing a reliable supply of water for export to Los Angeles and for use in Inyo County. (Agreement, Section III.A, p. 10.) (Underlining added for emphasis.)
This means that groundwater pumping and changes in surface water management practices will be managed with the goal of avoiding significant decreases and changes in Owens Valley vegetation from conditions documented in 1984 to 1987, and of avoiding other significant environmental impacts. (Green Book, Section I.A, p. 1.) (Underlining added for emphasis.)
Further, as noted on page 5 of the Notice of Dispute, in regard to the Type B and Type C vegetation at issue in the Laws area:
Should water balance calculations project that less soil water will be available in an area of Type B or C vegetation than is required by the vegetation, and…[I]f the projected soil water deficit is attributable to changes in surface water management practices, such action as is feasible and necessary will be taken to avoid significant decreases and changes in the vegetation. (Green Book, Section I.B.2.b, p. 14.) (Underlining added for emphasis.)
The Notice of Dispute established that there is a need for reasonable and feasible action to avoid the perpetuation of adverse vegetation conditions in the Laws area. As stated on page 16 of the Notice of Dispute:
It has been shown above that the lowering of the water tables under parcels 52, 82 and 85 is attributable to LADWP’s groundwater pumping in combination with LADWP’s changes in the frequency of the operation of the McNally canals. Further, the decline in the water table under these parcels caused the perennial vegetation cover within these parcels to decline significantly below baseline conditions. Moreover, the perennial vegetation in these parcels has been below baseline for at least ten years.
The Notice of Dispute (at pp. 16-17) summarized the need for the action requested by the County to improve the vegetation conditions in the Laws area:
It is both feasible and necessary to commence operation of the McNally canals this runoff year to promote recovery of the water tables under parcels 52, 82 and 85 to provide an opportunity for the perennial vegetation cover in these parcels to recover to achieve the goals of the Agreement. The County requested [at both the Technical Group and Standing Committee levels] that the McNally canals be operated this runoff year as part of LADWP’s Annual Operations Plan. LADWP objected…
If the operation of the canals is not commenced this runoff year, water levels under these parcels will remain below the rooting zone of the vegetation within the parcels, and the vegetation cover will continue to remain significantly below baseline conditions.
As shown above, perennial vegetation cover that has declined below baseline conditions due to a lowering of the water table beneath the vegetation has recovered to baseline once the water table has been allowed to recover to supply water to the vegetation for a sufficient period of time. Therefore, it is reasonable to assume that the best chance for recovery of perennial vegetation in parcels 52, 82 and 85 is to promote water table recovery to improve soil moisture conditions in the rooting zone of the vegetation in these parcels.
The recovery of the water tables should not be further delayed. The vegetation within parcels 52, 82 and 85 has been degraded for a long time. A further delay may jeopardize the recovery of this vegetation. (See Figures 3, 4 and 5 above.)
Conclusion. LADWP’s characterization of the County’s requested action as a unilateral demand for the implementation of a mitigation plan is unfounded. LADWP has refused at both the Technical Group and the Standing Committee to take the reasonable and feasible action to avoid impacts required by the Agreement. The actions requested by the County should be promptly implemented without the unnecessary procedural delays sought by LADWP.
Contention 2
LADWP contends that the County has not submitted a "Request for Resolution" to the Technical Group, and has not submitted a "Request for Resolution" to the Standing Committee, prior to commencing the dispute process as required by the applicable draft Standing Committee Dispute Resolution Procedures.
Reply 2
Initially, it should be noted that the Standing Committee is currently considering the adoption of dispute resolution procedures that will augment the provisions of Section XXVI of the Agreement. At its meeting on July 6, 2000, the Standing Committee agreed that in the event that a dispute arises prior to the formal adoption of such procedures, "Draft 6 of the Inyo County/Los Angeles Standing Committee Dispute Resolution Procedures" dated June 14, 2000 (hereinafter "Procedures"), which was presented to the Standing Committee at its meeting on June 16, 2000, will govern any such dispute. (A copy of the Procedures is Attachment 4 hereto.)
Section III of the Procedures governs the invocation of dispute resolution. Section III sets forth two mutually exclusive alternative procedures for invoking dispute resolution. Under the first procedure, a party who believes that an issue within the jurisdiction of the Technical Group or the Standing Committee is in need of resolution may submit a "Request for Resolution" to either of those bodies as appropriate. (See section II.A and II.B of the Procedures.) As set forth in Section III.A.1, if a Request for Resolution have been submitted, and the issues have not been resolved by the Standing Committee within a specified period of time, either party may commence dispute resolution by serving "Notice of Dispute" within a 51 calendar day period.
Under the second procedure, no "Request for Resolution" is submitted or required. Section III.A.2 provides:
In the event that at [a]Standing Committee meeting, the Standing Committee has been unable to resolve an issue presented as an item on its meeting agenda, either party may serve a "Notice of Dispute" ("Notice") not later than thirty (30) calendar days after [the] meeting.
Under section III.A.2, if an item on the Standing Committee agenda is unresolved, a party may commence dispute resolution without first having submitted a Request for Resolution. Therefore, contrary to LADWP’s contention, there is no requirement that a party submit a Request for Resolution to either the Technical Group or to the Standing Committee, a condition precedent to invoking dispute resolution.
In commencing this dispute, the County followed the second procedure prescribed by section III.A.2. On the agenda of the September 14, 2000 Standing Committee meeting, there appeared item 4c titled: "Operation of McNally Canals This Year/Change in the Operations of McNally Canals." (See agenda of the September 14, 2000 Standing Committee meeting which is Attachment 9 to the Declaration of Peter Kavounas, LADWP Response.) In support of its position on this agenda item, the County’s Standing Committee representatives submitted a memorandum to the Standing Committee dated September 14, 2000 that requested the Standing Committee to resolve the two McNally canal issues. (A copy of this memorandum is Appendix 5 to the Notice of Dispute.) The memorandum clearly stated the County’s request as follows:
The County requests that the Standing Committee resolve the following issues:
1. Whether one or both of the McNally canals should be operated during the remainder of this runoff year to promote water table recovery, allow for vegetation recovery, and to supply the remaining Type E and E/M project irrigation requirements in the Laws area; and,
2. Whether LADWP’s announced intent to reduce the frequency of the operation of the McNally canals is a permanent change in the operation of the McNally canals that requires Standing Committee approval under the Agreement.
The County’s memorandum concluded with the statement that:
If these issues are not resolved at the Standing Committee meeting, the Inyo County Board of Supervisors has directed that the unresolved issues be submitted to dispute resolution.
Conclusion. The Standing Committee considered agenda item 4c at its September 14, 2000 meeting, but was unable to resolve either of the issues raised by the County. As provided in section III.A.2 of the Procedures, the County served its Notice of Dispute within 30 days of the September 14, 2000 Standing Committee meeting. As provided in section III.A.2, and contrary to the assertion of LADWP, the County was not required to submit a Request for Resolution as a condition precedent to the service of its Notice of Dispute.
Contention 3
LADWP contends that the County has not, as required by the Agreement, attempted to resolve differences at the Technical Group level before submitting a dispute to the Standing Committee.
Reply 3
As shown below, on multiple occasions, in conformance with the procedures contained in the Agreement, the County sought resolution of the two issues identified in the Notice of Dispute at both the Technical Group and the Standing Committee. Neither entity was able to resolve the issues. The County is not required to resubmit the issues to the Technical Group before the issues are resolved.
The Agreement requires LADWP to prepare an "Annual Operations Plan" which sets forth its proposed operations and pumping for each runoff year (April 1st through March 31st). This plan must be submitted to County by April 20th of each year. The County’s Technical Group representatives then have ten days to comment on the plan, and following the receipt of the County’s comments, the Technical Group has ten days to meet and to attempt to resolve any issues raised by the County. (Agreement, Section V.D, pp. 23-24.) Under the provisions of the Drought Recovery Policy (Appendix 6 to the Notice of Dispute), the Standing Committee establishes annual pumping programs based on an evaluation of current conditions, including soil moisture level, water table depth, degree of water table recovery, soil type, vegetation conditions, the results of studies pertaining to vegetation recovery, and compliance with the goals of the Agreement.
In 2000, LADWP submitted its proposed 2000-2001 operations plan. On May 1, 2000, the County submitted written comments on the proposed plan. (A copy of the County’s written comments is Appendix 5 to the Notice of Dispute.) On page 5 of its comments, the County made the following recommendation in regard to the McNally Canals:
The plan proposes 7,290 acre-feet of pumping and no operation of the McNally canals during the 2000-2001 runoff year. Under the proposed plan, water table levels would decline and the vegetation, instead of being given a further opportunity to recover, would further decline below baseline conditions. Consequently, the proposed pumping plan is inconsistent with attainment of the vegetation protection goals of the Agreement.
Given the conditions in the Laws Well Field, the Water Department recommends no groundwater pumping, and that LADWP operate the McNally canals during the 2000-2001 runoff year to promote water table recovery, allow for vegetation recovery, and to supply irrigation requirements in the Laws area.
As acknowledged by the LADWP Response, the County’s request to LADWP was presented and discussed (together with the issue of LADWP’s planned inaction not being in conformance with its past practices in operating the canals) as part of the discussion of 2000-2001 operations plan at the May 2, 2000 Technical Group meeting. At the meeting, LADWP’s representatives refused the County’s request to operate the McNally canals. (See LADWP Response, Declaration of Gene Coufal, page 2.)
On May 11, 2000, the Standing Committee conducted a tour of the Laws area and the Standing Committee members (as well as members of the Technical Group) discussed the requested operation of the McNally canals and LADWP’s past practices in operating the canals. (See itinerary of the Standing Committee tour that is Attachment 5 to the Declaration of Peter Kavounas, LADWP Response.) Following the tour on May 11, 2000, the Standing Committee conducted a regular meeting and considered the 2000-2001 Operations Plan. At the meeting, the Standing Committee took no action on the County’s request to operate the McNally canals. (See minutes of the May 11, 2000 Standing Committee meeting which are Attachment 5 to the Declaration of Peter Kavounas, LADWP Response.)
By letter dated May 26, 2000 (a copy of the letter is Appendix 7 to the Notice of Dispute), LADWP responded to the County’s comments on the 2000-2001 Operations Plan. The letter stated that LADWP refused to operate the McNally canals on the grounds that such action would be "…clearly inconsistent with the water supply goal of the Water Agreement."
On June 16, 2000, the 2000-2001 Operations Plan appeared as item 4 on the Standing Committee agenda. Included in the materials provided to the Standing Committee in regard to agenda item 4 was a memorandum to the Standing Committee dated June 12, 2000 from Inyo County’s Standing Committee representatives concerning the 2000-2001 Operations Plan. (A copy of the June 12, 2000 memorandum letter is Attachment 5 hereto.)
In its June 12, 2000 memorandum, the County reiterated its request that the McNally canals be operated to avoid causing significant vegetation impacts and sets forth detailed reasons in support of its request. On page 7 of the memorandum, the County unequivocally stated:
LADWP’s proposed permanent change in the operation of the McNally canals when compared with its past practices is inconsistent with the Agreement unless the Standing Committee first approves the change.
At the June 16, 2000 Standing Committee meeting, LADWP’s representatives did not agree to the County’s request to operate the McNally canals, or agree that the Standing Committee was required to approve the change in canal operations proposed by LADWP. (See the minutes of June 16, 2000 Standing Committee meeting which are Attachment 6 to the Declaration of Peter Kavounas, LADWP Response.)
On July 6, 2000, the 2000-2001 Operations Plan appeared as item 1 on the Standing Committee agenda. Once again, the Standing Committee did not agree to the County’s request to operate the McNally canals, or agree that the Standing Committee had to approve the change in canal operations proposed by LADWP. (See the minutes of July 6, 2000 Standing Committee meeting which are Attachment 7 to the Declaration of Peter Kavounas, LADWP Response.)
As acknowledged by the LADWP Response, the County’s request to operate the McNally canals was again considered by the Technical Group as part of its discussion on the 2000-2001 Operations Plan, and the Technical Group discussed the County’s contention that LADWP’s proposed inaction was a part of a permanent change in its canal operations that required prior approval of the Standing Committee at the August 29, 2000 Technical Group meeting. At that meeting, LADWP’s Technical Group representatives again refused to operate the McNally canals, and did not agree with the County that such action was part of a permanent change in canal operations requiring prior Standing Committee approval. (See Declaration of Peter Kavounas, page 4, LADWP Response.)
Thereafter, on September 14, 2000, the Standing Committee was expressly requested by the County to resolve the following two issues, but was unable to resolve either issue:
1. Whether one or both of the McNally canals should be operated during the remainder of this runoff year to promote water table recovery, allow for vegetation recovery, and to supply the remaining Type E and E/M project irrigation requirements in the Laws area; and,
2. Whether LADWP’s announced intent to reduce the frequency of the operation of the McNally canals is a permanent change in the operation of the McNally canals that requires Standing Committee approval under the Agreement.
Conclusion. The County availed itself of every opportunity to have the Technical Group resolve the two McNally canal issues. The Technical Group (and the Standing Committee) repeatedly refused the County’s requests. Having been unsuccessful in obtaining a Technical Group (or Standing Committee) resolution of the issues, on September 14, 2000, the County requested the Standing Committee to resolve the issues. When the Standing Committee failed to resolve the issues, the County commenced dispute resolution in accordance with section III.2.B of the applicable Procedures. Section III.A.2 of the Procedures does not require the County to once again submit the issues to the Technical Group prior to obtaining a resolution of the disputed issues. This is especially true in regard to Issue 2 where the sole discretion whether to approve a permanent change in the operation of the McNally canals is vested in the Standing Committee, not the Technical Group.
Finally, it is very important to note that even if the commencement of dispute resolution under section III.A.2 somehow conflicts with procedures contained in the Agreement, when the Standing Committee agreed to follow the Procedures, it waived the right to raise such a conflict. Section X of the Procedures expressly states:
To the extent Dispute Resolution Procedures set forth above are, or may be, inconsistent, or in conflict, with those set forth in Paragraph XXVI of the Long Term Groundwater Management Plan, the Parties by their approval of these Dispute Resolution Procedures hereby expressly waive any such inconsistency or conflict and agree to follow and be bound by these Dispute Resolution Procedures.
Conclusion—Reply to Procedural Issues
LADWP’s procedural objections and contentions are without merit. Specifically, (1) the County’s Notice of Dispute does not seek the implementation of a mitigation plan; (2) a "Request for Resolution" is not required to be submitted to either the Technical Group or the Standing Committee as a condition precedent to its commencement of dispute resolution; and (3) the County is not required to resubmit the two disputed McNally canal issues to the Technical Group prior to obtaining a resolution of the issues. The two issues should be promptly resolved without unnecessary procedural delay.
REPLY TO LADWP’S NON-PROCEDURAL CONTENTIONS
Throughout its lengthy and internally contradictory response to the Notice of Dispute, LADWP makes numerous non-procedural contentions and assertions as to why the conclusions upon which the Notice of Dispute is based are not supported by evidence or are otherwise defective. Below the County refutes the non-procedural assertions and contentions of LADWP.
In order to assemble a coherent reply to LADWP’s lengthy response, LADWP’s non-procedural contentions have been divided between Issue 1 and Issue 2 as appropriate. In replying to Issue 1, LADWP’s many contentions are further separated into one of three broad categories based on the subject matter of the contention, then each contention is individually identified, and the County’s reply to each individual contention is presented. In replying to Issue 2, there are no broad categories, but each contention is individually identified and the County’s reply to each individual contention is presented
Issue 1
Introduction
As stated on the first page of the Notice of Dispute, the subject of the dispute in Issue 1 is:
Whether operation of one or both of the McNally canals should be commenced during this runoff year, and continued as necessary, until perennial vegetation cover in parcels 52, 82 and 85 in the Laws area has recovered to baseline conditions.
In the Notice of Dispute, the County established the following in regard to Issue 1:
- Groundwater levels under parcels 52, 82 and 85 in the Laws area have dropped.
- The lowering of the water levels is attributable to LADWP’s groundwater pumping in combination with LADWP’s changes in the frequency of the operation of the McNally canals.
- The decline in the water levels under the parcels caused a deficit in the soil water available to the vegetation.
- The decline in the water level and the soil water under these parcels caused the perennial vegetation cover within these parcels to decline significantly below the baseline vegetation conditions set forth in the Agreement.
- The perennial vegetation cover in these parcels has been below baseline for at least ten years.
- If the McNally canals are operated and water is spread from the canals, the water levels under the parcels will rise.
- Raising the water levels will cause an increase in the soil water available to the vegetation.
- If the water levels under these parcels is raised, the degraded vegetation within the parcels will have an opportunity to recover to the baseline vegetation conditions of the Agreement.
- The Agreement requires that such action, as is feasible and necessary, be taken to avoid permanent significant decreases and changes in the vegetation within these parcels.
- Operation of the McNally canals is both feasible and necessary.
- Operation of the McNally canals is required under the Agreement.
In LADWP’s Response, LADWP challenges many of the County’s conclusions in regard to Issue 1. In this portion of the reply, the County refutes LADWP’s challenges.
Contentions 4 through 8 are related to LADWP’s general assertion that the conclusions in the Notice of Dispute are flawed because they are based on inappropriate data, misleading data presentations, and/or incomplete or inaccurate analyses.
Contention 4
LADWP contends that, because there is a statistical correlation between depth to groundwater and perennial vegetation cover, the County erroneously concludes that a change in depth to groundwater causes a change in perennial vegetation cover. (LADWP Response, pp. 9 –10.)
Reply 4
The County recognizes that statistical techniques like regression and correlation cannot alone demonstrate that a change in one variable causes a change in the other. However, in conducting its analysis, the County chose environmental variables that are likely to be correlated with a dependent variable because, if the variable is found to be correlated, a physical mechanism for causation could be explained. For example, because plants need water for growth, it is reasonable to expect that increasing the water available to vegetation by precipitation or water table rise (up to a point) will increase plant growth and vigor. Similarly, the regression analysis of groundwater fluctuations utilized variables that actually cause the observed hydrologic response, i.e., pumping and diversions to the McNally canals (Harrington Addendum, pp. 5-6). LADWP’s Response does not identify or quantify other environmental or causative factors that co-vary with the independent variables selected by Manning or Harrington.
Contention 5
LADWP contends that the second Figure 2 in the Notice of Dispute (showing average
change in vegetation cover relative to baseline conditions) is misleading because it fails
to depict positive changes in vegetation cover. (LADWP Response, p. 11).
Reply 5
In Figure 2, positive change that has occurred is clearly presented. Specifically, the DRPfree category shows the positive cover response of the wellfield parcel group where the water table had recovered sufficiently close to the depth-to-water baseline (average of 1985-87) or to the plant root zone as defined by the Green Book methods and promoted perennial cover. Figure 2 accurately shows, by control and wellfield category, the change in perennial cover relative to LADWP 1984-87 baseline perennial cover for the set of parcels inventoried each year.
Contention 6
LADWP contends that the County ignores all other causative factors and attributes all decreases in perennial vegetation cover to declines in depth to water. (LADWP Response, p. 10, 12).
Reply 6
As explained above, Manning chose independent variables likely to influence vegetation cover in these phreatophytic communities, i.e., depth to groundwater (DTW) and precipitation. Indeed, Manning presents the coefficients of determination (r2) for each regression performed. The coefficient of determination is the variance in the perennial cover data accounted for by the independent variable(s). The remainder (1-r2) is due to random noise and other environmental factors. For the statistically significant regressions between DTW and perennial cover, the r2 value ranged from 0.47 to 0.88. In other words, if nearly 50% or more of the vegetation response can be accounted for by DTW, that leaves less than 50% to be accounted for by the other environmental factors, such as precipitation (which was found to not be related to response of perennial species), herbivory, disease, mechanical disturbance, flooding, etc. Unfortunately, other causative factors referred to by LADWP could not be included in the analyses because of the absence of quantitative data.
Contention 7
LADWP contends that the County’s conclusions concerning change in the average perennial cover for control parcels are exaggerated because the County ignored the influence of fires that occurred prior to the establishment of the baseline vegetation conditions in some control parcels. (LADWP Response, pp. 10-11).
Reply 7
LADWP suggests the average perennial vegetation cover within parcels located outside of management areas (controls) presented in Figure 2 of the Notice of Dispute is biased upwards because three parcels were inappropriately included. LADWP’s concerns over these parcels were addressed shortly after LADWP’s comments to the County were received in 1992. At the time, the County found no validity to their assertion (Manning Addendum, pp. 2-3 and Attachments A and B). Since that time, one parcel, Poleta Canyon 220, has not been reinventoried, and many new control parcels were added to the inventory such that 24 to 50 control parcels have been reinventoried annually since 1992. The significant increase observed in the control group since 1995 is robust in that analyses over the years have shown that the mean changes only slightly in magnitude and not at all in significance if a few of the parcels, such as those identified by LADWP (PLC223 or PLC137), are removed from the data set. The results of analyses are presented correctly, and there is no exaggeration of the control group response.
Contention 8
LADWP contends that the County shows kriged depth to water estimates as being accurate to one hundredth of a meter when the estimated depth could be off by more than 6 feet (2 meters) because of the County’s failure to allow for standard error. If the estimated depth to water is shown incorporating the standard error, there is no difference between current conditions and the baseline depth to water. Moreover, using depth to water measured at a single monitoring well more accurately portrays water levels over an area. (LADWP Response, p. 14).
Reply 8
The County interprets the kriged depth to water values simply for what they are, the best available data to compare depth to water changes with vegetation data collected from a large land area. LADWP fallaciously interprets the standard error about an estimate of the mean as equal probability the true mean occurs within the entire range represented by + 1 standard deviation. The estimate of the mean is the best estimate of the underlying true value. Values progressively more distant from the estimated mean have progressively lower probability of representing the true mean. It is misleading to suggest that the baseline and current water table conditions are no different simply because error ranges overlap. Conclusions regarding differences between sample means are dependent on the choice of statistical test used, but LADWP did not substantiate this conclusion with results of an appropriate statistical test.
It is a fact that that the kriging procedures employed by Harrington and Howard involve interpolation. The kriging procedures also honor each individual datum. Thus, the interpolated depth to water at each monitoring well is identical to its measured value. By favoring use of data collected at a single point for the analysis of vegetation data collected over a much larger area, LADWP mistakenly assumes they are avoiding interpolation and its associated error. The interpolation promulgated by LADWP is to simply extend the depth to water measured at a single monitoring well to all locations within the parcel. The error associated with such a rudimentary interpolation technique is unquantified and probably quite large. Furthermore, the theoretical motivation of kriging is to minimize such estimation errors. Almost certainly, LADWP's method would result in poor assessments of water table conditions under a vegetation parcel simply because it ignores information from test wells that are nearer to portions of the parcel than the individual well. For example, test well 705T is closer to portions of parcel 85 than well V001G, yet LADWP’s preference is to ignore any information from 705T.
Contentions 9 through 20 are related to LADWP’s general assertion that parcels 85, 52, and 82 should not be considered relevant to this dispute because the County's interpretation of the monitoring data is inaccurate and fails to consider other relevant facts.
Contention 9
LADWP contends that the County has incorrectly concluded that changes in the depth to water under parcels 85, 52 and 82 are a result of LADWP’s past operations of the McNally canals. (LADWP Response, p. 9).
Reply 9
In the Notice of Dispute (p.10.), the County concluded that, "...the water table significantly declined in the Laws area, including beneath these parcels." The County presented concrete evidence for water table decline and recovery and did not simply assume water table fluctuations were due solely to McNally operation. Further, the Notice of Dispute concluded, "...The water table decline in the Laws area was caused by LADWP's groundwater pumping...and recovery of the water table was reduced and delayed by reduction in the frequency of the operation of the McNally canals…."
Figure 7 of Appendix 2 to the Notice of Dispute and LADWP's own technical evaluation (Jorat, Table 4 and Figure 8) show an association between diversions from the Owens River and water table recovery. Furthermore, Jorat’s Table 1 documents large volumes of groundwater recharge resulting from past operations of the McNally canals through conveyance losses and water spreading. Harrington notes that Jorat’s own data and the Green Book support the County’s contention that McNally canal operations including conveyance losses and spreading are the primary source of recharge in the Laws area. (Harrington Addendum, p. 4)
Contention 10
LADWP contends that because of its method of data presentation, the County exaggerates the negative change in perennial vegetation cover within all parcels. (Hubbard and Martin p.8).
Reply 10
Hubbard and Martin assert that "Manning has presented data concerning wellfield parcels in a manner that exaggerates negative change". The County assumes they are referring to the presentation of change in perennial cover relative to baseline in Figure 2 of the Notice of Dispute and in Figure 1 of Appendix 1 to the Notice of Dispute as opposed to presenting the absolute change. LADWP's assertion is simply untrue because the normalization procedure is not biased toward cover decline more than toward increases in cover. Both absolute change and relative change are valid renditions of the raw measurements for subsequent analysis. Calculation of relative change is an accepted method to facilitate comparisons of sampling units with widely varying characteristics, such as plant community type and initial perennial cover. While it is true that the absolute changes are smaller than relative change because cover is always less than 100%, it is equally true that the overall trends and interpretation of statistical analyses using either data set are the same.
Contention 11
LADWP contends that, because of its use of inappropriate sampling methodologies, the County exaggerates the negative change in perennial vegetation cover. (LADWP Response, p 12).
Reply 11
LADWP's underlying premise is that for any assessment of vegetation conditions to be valid it must exactly reproduce the methods/locations used during the baseline inventory. This is not only unnecessary, it also is impossible. The baseline values are the standard for management mandated by the Agreement. The baseline management maps and the mapped parcel boundaries and cover and composition attribute data are the official standard to be maintained. The techniques the County has employed to monitor vegetation change are consistent with the Green Book and entirely appropriate.
The Agreement’s baseline vegetation conditions are shown on management maps attributed with vegetation cover and composition data assigned to represent individual parcels. The original sampling locations to derive the baseline values are not known and only vague descriptions of how sampling locations were chosen exist. The County uses the same sampling technique (line point method) used in establishing baseline values. However, the technique is conducted at randomly placed transects to objectively characterize the cover and composition to compare with the baseline values. Since the original sampling locations cannot be replicated, the hypothesis that the observed vegetation decline is the result of different sampling locations cannot be tested adequately, and LADWP's conclusions that Manning's results are biased toward lower values are unsubstantiated. Further, that conclusion by LADWP is inconsistent with results of sampling in control areas. If sampling bias were an important factor, one would expect the effect to appear in control parcels as well, but cover in control parcels is generally above baseline. Moreover, discussion presented later in this reply will show that the analyses for individual parcels presented by LADWP are incomplete and/or support the conclusions reached in the County’s Notice of Dispute.
Contention 12
LADWP contends that, because the County ran transects through disturbed areas (ditches, roads, old railroad lines, cleared areas adversely impacted by the spreading of water, heavy equipment, etc.), the negative change in perennial vegetation cover in parcel 52 is exaggerated. (LADWP Response, p. 12).
Reply 12
LADWP contends that sampling in disturbed areas within parcel 52 (including those that predate the baseline period) could account for the vegetation decline detected by Inyo’s vegetation monitoring and suggested removing two transect results from the analysis. It should be pointed out that biasing an analysis by selectively ignoring unfavorable results is unacceptable; notwithstanding this, if transects T4 and T5 identified by Hubbard and Martin were removed, the mean perennial cover in parcel 52 would increase from 4.5% to 5.3%. When compared with the baseline value of 27.8% perennial cover, the alleged distortion of the results is negligible and the County's conclusions are unchanged.
The County's sampling methods, like LADWP’s baseline inventory methods, typically avoid obvious disturbances.Inclusion of small disturbances is unavoidable, but Inyo's transects seldom cross disturbances considered unacceptable. (Manning Addendum, pp. 11-13) Thus, removal of only a small fraction of the raw data would be required if the data were to be considered invalid by LADWP. It is interesting to note that highest measured perennial cover at any parcel 52 transect in 2000 was 9%, a value still much below the baseline value. This simply shows that even the biased approach proposed by LADWP substantiates Manning's conclusion that the perennial cover is much below the baseline.
Hubbard and Martin further claim, "...similar issues are associated with transect placement in parcel 82 and 85." However, no analysis whatsoever is presented to support this contention. Thus, Hubbard and Martin’s claim in regard to these parcels is unsubstantiated conjecture.
Contention 13
LADWP contends that the County has incorrectly concluded that there is a negative change in perennial vegetation cover to below baseline conditions in parcel 85 because there is a lack of baseline data for the parcel 85 and therefore, the vegetation change from baseline cannot be determined. (LADWP Response, p. 11).
Reply 13
LADWP states that because no assessment of variance among baseline transects is available, "no determination of change in relationship to baseline can be made." This claim is central to their contention that parcel 85 should not be included in the County's Notice of Dispute. Statistical procedures do exist that can be used to compare the mean of several samples with a regulatory standard that does not have a sampling variance (See EPA Guidance for Data Quality Assessment, Practical Methods for Data Analysis, 2000). Regardless of this factual inaccuracy, it is important to note that neither the Green Book nor the Agreement require the performance of a statistical analysis to establish measurablity. In fact, the Green Book (p.21) provides that "A determination of measurability will be made if any of the relevant factors considered indicate even a small documentable change in vegetation cover or composition has occurred." Obviously, a simple comparison of the average parcel cover to the baseline value is possible and allowed by the Green Book.
Contrary to LADWP's statement, the County did not simply assume that perennial cover was below baseline. The County calculated the average cover in 2000, and it was below the Agreement baseline cover (19.0% < 30.6%). That conclusion was reached after careful and repeated data collection and analysis consistent with accepted scientific practices and with provisions of the Green Book. More importantly, LADWP fails to consider the consequences of wrongly assuming that any comparison is invalid. By logical extension of LADWP's argument, wherever baseline conditions are based on unknown or sparse data, measurability can never be documented and conclusions of significant impacts can never be established. Thus, these areas in effect would no longer be subject to the vegetation protection provisions of the Agreement. Clearly, this was not the end result contemplated by either LADWP or the County when the goals of the Agreement were drafted.
In a related vein, even if a valid statistical test were performed, LADWP fails to acknowledge the risk of falsely identifying a change as insignificant when in actuality a significant difference does exist. The t-test used in the Notice of Dispute relied on a low probability value (0.05) suggesting that the power of the test (probability of failure to detect a significant difference) was considerably higher than 5%.
Contention 14
LADWP contends that the County has incorrectly concluded that there is a negative change in perennial vegetation cover to below baseline conditions in parcel 85. (LADWP Response, p. 11-12).
Reply 14
It should be noted that this contention directly contradicts LADWP’s previous contention that because of a lack of baseline data, vegetation change in parcel 85 cannot be determined. The Agreement assigns the baseline value of 30.6% cover to represent the entire Laws 85 parcel. Therefore, it is necessary to rely on a random sampling technique where each point within the parcel has equal probability of being sampled. The County used such a technique to establish the amount of negative change from the parcel’s baseline conditions. It also should be noted that Hubbard and Martin selectively ignore most of the individual transect results, thus biasing their comparison and invalidating their conclusion.
LADWP asserts that the data from a USGS cooperative study transect serve as the baseline data for Laws 85. Although no further information was supplied by LADWP on this transect, Inyo’s records show that the USGS transect was run in September 1983. It should be noted that 1983 predates the 1987 baseline period for Laws presented in the Green Book.
Contention 15
LADWP contends that the County has incorrectly concluded that the depth to water under parcel 85 is below baseline levels; if actual depth to water measurements in monitoring wells are used instead of kriging estimates, it can be seen that the depth to water has recovered to baseline levels under Parcel 85 (LADWP Response, p. 14).
Reply 15
LADWP contends that water levels recovered to baseline conditions in 2000 in test well V001G, and by interpolation, recovered to baseline under the entire area of parcel 85. (See Reply 8 for a discussion of the problems associated with interpolation of depth to water over a large area using data from a single monitoring well.) Hubbard and Martin state that "Depth to water data was not available for April 1985 so there is no alternative but to use an estimate for that year." Thus, contrary to their later statement, LADWP's assessment of water table recovery did not use actual measurements.
Hubbard and Martin do not disclose the value or how their estimate was derived, nor do they provide an estimate of the likely error of their estimate. Hubbard and Martin’s baseline average depth to water is based on only three values and could be influenced substantially by the estimated value. Failure to disclose the estimated value for 1985 makes it impossible to evaluate the accuracy of their conclusion that the water table has recovered to baseline. In contrast, the methods and data used to generate the County’s DTW estimates are described at length in Harrington and Howard.
LADWP and the County agreed informally to a definition of baseline depth to water as the average of April depth to water readings from three consecutive years, 1985-87. The County does not dispute that the water table may have briefly recovered to this baseline in the past. For most of the Laws area, the baseline average is considerably deeper than the root zone. Most importantly, regardless of whether the high water level reached baseline conditions at some point during a single year, the water table recovery was insufficient to recover vegetation to baseline levels.
Contention 16
LADWP contends that the County has incorrectly concluded that there is a decline in perennial vegetation cover below baseline conditions in parcel 52 because the County fails to recognize that part of their measured decline was caused by standing water caused by LADWP’s water spreading activities which killed vegetation within the parcel. (LADWP Response, p. 12).
Reply 16
The only evidence provided by LADWP to support this contention is presented in a photograph (Figure 3b of Hubbard and Martin). No water spreading is evident in the photograph nor can the frequency or duration of spreading be inferred from the photograph. It should be noted that the dominant species in this area tolerate brief periods of inundation (Groeneveld and Crowley, 1988); therefore, this photograph is not sufficient evidence to assess the impact of spreading on the vegetation since 1984-87. Also, LADWP fails to note that spreading increases the available soil water adjacent to the flooded area and the probable positive vegetation response would partially offset the negative impact of flooding. The magnitude of the effect of spreading on the vegetation is unquantified, and thus, it is impossible to conclude spreading accounts for a meaningful portion of the observed vegetation decline.
Contention 17
LADWP contends that the County has incorrectly concluded that there is a decline in perennial vegetation cover below baseline conditions in parcels 52 and 82 because the County fails to recognize that part of their measured decline was caused by cattle grazing which occurred from 1991 to 1998 (LADWP Response, p. 13).
Reply 17
LADWP suggests in previous sections that the vegetation decline in parcels 52 and 82 is an artifact of the sampling methods and not an actual loss in vegetation cover. Now LADWP admits an unquantified decline in the vegetation cover and implies that the decline is due to livestock grazing. This obvious contradiction points to the lack of internal consistency in their argument.
Contention 18
LADWP contends that parcel 82 should not be considered relevant to this dispute because the area of the parcel was adversely affected by past activities of LADWP and will be mitigated as required by an environmental impact report. (LADWP Response, p. 14).
Reply 18
There is no commitment by LADWP to initiate mitigation in this parcel. Parcel 82 was identified in the FEIR as a potential site for selective mitigation. As stated in the Revegetation Plan for Impacts in the LADWP, Inyo County EIR for Groundwater Management (Yamashita, 1999), the Standing Committee must approve the mitigation for parcel 82 before it will be implemented. The Standing Committee has not approved any mitigation for parcel 82. (Is LADWP now committing to institute mitigation in parcel 82?)
Contention 19
LADWP contends that the small area of the three identified parcels is not indicative of the vegetation conditions throughout the Laws well field area; therefore, it should be assumed that vegetation conditions throughout the entire area are in conformance with the Agreement. (LADWP Response, p. 10)
Reply 19
The County selected parcels 52, 82, and 85 because these were the Laws area parcels that had demonstrated statistically significant lower perennial cover than baseline in all years they have been monitored. These three parcels portray the most obvious degraded conditions. Inyo routinely monitors several other parcels in the Laws wellfield, and as of 2000, parcels 40, 62, 63, 65, 112, and 137 all showed average perennial cover below baseline (Appendix 1 to the Notice of Dispute). With the exception of parcel 137, these below-average parcels are located in an area bounded approximately by the Upper McNally Canal, within about 0.75 mile south of the Lower McNally Canal, and within about 0.5 mile west of Highway 6.
Further, depth to groundwater maps presented as Figure 21 and Figure 24a of Appendix 1 to the Notice of Dispute show that this area roughly corresponds with the area beneath which 2000 water tables were below 1987 levels. Hypothetically, all non Type E parcels within this zone that were mapped during the 1987 baseline that contain groundwater-dependent species could potentially be experiencing lower than baseline perennial cover. (Manning Addendum, pp. 17-18) The sum of the area of all such parcels equals 1336.8 acres or 2.09 square miles. Using its sampling design, Inyo monitors eight parcels in this region for a total acreage of 246.3 acres, or nearly twenty percent of the potentially affected area.
Contention 20
LADWP contends that the County should not have used depth to water under the three
identified parcels as a causative factor in the negative change in perennial vegetation
cover within the parcels. The Agreement does not base management on depth to water, but on
determinations of available soil water and of the amount of soil water required by
vegetation. Depth to water alone provides no insights to the status of vegetation. Depth
to water is a factor outside of the Agreement and should not be considered. (Coufal intro,
p. 18).
Reply 20
This assertion is contradicted by the voluminous scientific literature regarding the relationship between phreatophytic vegetation and depth to groundwater as well as by cooperative study results. The Agreement, the Green Book, and the Drought Recovery Policy all clearly recognize that depth to water is a central tenet in the management of groundwater pumping.
The Green Book (Section IV. Hydrologic Management) states:
This section outlines the procedures that will be followed in the monitoring and evaluation of hydrologic data…The hydrologic data that will be analyzed by both LADWP and Inyo County include depth to water data in approximately 700 monitoring wells…
The Green Book also states, (Section I.C.1.b Determining Attributability)
A determination of whether the impact is attributable to groundwater pumping or changes in surface water practices will be based on evaluation and consideration of relevant factors, which may include:
iii. Comparison of water table depths in the affected area with water table depths in the general region with soils, vegetation cover, and vegetation composition comparable to the affected site. New shallow piezometers may be installed and monitored, if necessary, to obtain relevant water table data..
Contentions 20 through are related to LADWP’s general assertion that the County's requested resolution of operating the McNally canals won't cause a recovery in the water table or a recovery in perennial vegetation in the parcels 85, 52, and 82 (LADWP Response, p. 9-10).
Contention 21
LADWP contends that water spreading, not conveyance losses, are the greatest source of recharge in the Laws area, therefore, past practices of the McNally canals are not the cause of depth-to-water fluctuations in the Laws area (LADWP Response, p. 16-17).
Reply 21
Regarding conveyance losses in the McNally canal system, LADWP states that water spreading, not conveyance losses, from the canals is the primary source of groundwater recharge in the Laws area. The County concurs that water spreading and artificial recharge are important sources of recharge in the Laws area. The definition presented by Harrington in Appendix 2 to the Notice of Dispute includes water spreading and artificial recharge as part of the use and distribution of water in the canal system. The definition includes:
The frequency and volume of diversions [from the Owens River into the Upper and Lower McNally canals] between 1970 and 1995, and their distribution and use along the McNally canal system…
As noted in LADWP’s LAA Operations Statement (page 6), one primary purposes of operating the canals is "Owens River diversions for spreading." Thus, LADWP’s assertion that water spreading is the primary source of groundwater recharge in the Laws area corroborates, rather than refutes, the fact that maintaining past practices of the operation of the McNally canals (including the use and distribution of water by spreading) is necessary to sustain perennial phreatophytic vegetation in the Laws area.
Contention 22
LADWP contends that the operation of the McNally canals won’t cause an increase in perennial vegetation within the three identified parcels.
Reply 22
LADWP itself contradicts this assertion. Hubbard and Martin state:
The baseline conditions for vegetation at Laws reflected a wet period of time with annual releases into the McNally Canals from 1978 to 1986 (Harrington page 3). The frequency of releases in this period of time drove the vegetation conditions that represent baseline.
LADWP’s scientists believe that the baseline vegetation conditions were caused by the frequency of releases into the McNally canals. This conclusion accurately reflects all available hydrologic and vegetation data.
Issue 2
Introduction
As stated on the first page of the Notice of Dispute, the subject of the dispute in Issue 2 is:
Whether LADWP’s announced intent to continue reductions in the frequency of the operation of the McNally canals is a permanent change in the operation of the McNally canals that requires prior Standing Committee approval under the Agreement.
As stated in the Notice of Dispute, the Agreement is very specific in regard to permanent changes in canal operations. Section IV.A of the Agreement provides:
The Department shall continue to operate canals in accordance with its practices from 1970 (past practices have included taking canals out of service for maintenance and for operational purposes). However, any permanent change in canal operations, compared to past practices, shall be subject to prior Standing Committee approval. (Underlining added for emphasis.)
In the Notice of Dispute, the County established the following:
- LADWP’s operation of the McNally canals has deviated from past practices in that the frequency of the actual operation of the canals has been reduced.
- LADWP has announced its intent to continue the reduction in the frequency of the operation of the canals.
- LADWP’s planned change in the frequency of the operation of the canals is a permanent change in canal operations requiring prior Standing Committee approval.
In LADWP’s Response, LADWP argues that it has had a policy concerning the operation of the McNally canals for many years and that there have been not changes to the policy. Therefore, LADWP argues that because the policy has not changed, there is no change in canals operations requiring prior Standing Committee approval.
In this portion of the reply, it is shown that regardless of whether LADWP has had such a policy, it is LADWP’s permanent change in the physical operations of the McNally canals that triggers the need for Standing Committee approval. There will be a permanent reduction in the amount of surface water that will be provided to the Laws area via the McNally canals in comparison to the past. This reduction will adversely affect vegetation in the Laws area. Therefore, such a permanent change in canal operations requires Standing Committee approval. It is irrelevant whether there has been a change in LADWP’s abstract policy.
Contention 23
LADWP contends that because it has a policy regarding surface water management that has not changed, the County incorrectly has concluded a permanent reduction in the frequency of the operation of the McNally canals is a permanent change in the operation of the canals. (LADWP Response, page 18).
Reply 23
The LADWP Response at page 18 contends that:
Contrary to the County’s assertion, the operation of the canals is the result of a consistent application of past surface water management practices. The County believes that infrequent operation of the canals is a change in past water management practices and overlooks the Agreement itself, which acknowledges that complexity. Page 16 of the Agreement expressly notes [that] "past practices have included taking canals out of service for maintenance and for operational purposes."
The LADWP Response provides an operational statement that LADWP contends clearly identifies it policy for operating the McNally canals. The LAA Operations Statement included in the LADWP Response lists several operational purposes for putting water into the canals, but provides neither a clear definition of what LADWP’s past practices have been, nor a definition of their policy for canal operations. According to the LAA Operations Statement, past practices consist of whatever decisions the aqueduct managers happen to have made.
Despite LADWP’s assertions, the only rational and quantitative basis for defining past surface water management practices as they relate to the vegetation requirements of the Agreement is the frequency and volume of diversions into the canals from the river and the use and distribution of water within the canal system.
The Notice of Dispute provided the following clear and quantifiable definition of past practices of operation of the McNally canals (see Harrington, page 1):
"The frequency and volume of diversions [from the Owens River into the Upper and Lower McNally canals] between 1970 and 1995, and their distribution and use along the McNally canal system…"
The definition of past practices used in the Notice of Dispute is consistent with the vegetation management section of the Agreement. In contrast, the LAA Operations Statement provides no clear or quantifiable definition of past practices, and no succinct statement of the policy that supposedly governs their canal operations.
Regardless of whether LADWP could articulate such a policy, it is LADWP’s permanent change in the physical operations of the McNally canals that triggers the need for Standing Committee approval. Under LADWP’s change, less surface water will be provided to the Laws area than in the past. As admitted by LADWP’s vegetation scientists, this will affect vegetation in the Laws area. Whether there has been a change in an abstract policy is irrelevant.
Contention 24
LADWP contends that a permanent reduction in frequency of diversions into the McNally canals does not require prior Standing Committee approval. (LADWP Response, page 20).
Reply 24
On page 3 of the Declaration of Gene Coufal (LADWP Response) it is asserted that:
If someone were to examine how many years since 1970 water had been diverted into the McNally canals from the Owens River, a ‘frequency of diversions’ statistic could be constructed. However that would be an artificial construct, a meaningless statistic…
In contrast to Mr. Coufal’s statement, LADWP’s biologists unequivocally state (Hubbard and Martin, page 2) that:
The baseline conditions for vegetation as Laws reflected a wet period of time with annual releases into the McNally Canals from 1978 to 1986 (Harrington page 3). The frequency of releases in this period of time drove the vegetation conditions that represent baseline. (Underlining added for emphasis.)
Without question, LADWP’s scientists believe that the baseline vegetation conditions within parcels 85, 52 and 82 as described in the Agreement were caused by the frequency of releases into the McNally canals; however, LADWP’s Aqueduct Business Manager takes the contradictory position that the frequency of releases into the canal system is a "meaningless statistic."
It is important to note that Section IV. A of the Agreement (page 16) states:
The Department shall continue to operate canals in accordance with its past practices from 1970 (past practices have included taking canals out of service for maintenance and for operational purposes). However, any permanent change in canal operations, compared to past practices, shall be subject to prior Standing Committee approval.
It is significant that the above quoted provision requiring Standing Committee approval of permanent changes in canal operations is incorporated into the Agreement’s section on "Vegetation Management." The intent of the Agreement in requiring prior Standing Committee approval of a permanent change in canal operations is to prevent unilateral operational changes by LADWP that could negatively affect the vegetation of the Owens Valley, and to insure that the Standing Committee has considered the potential impacts of the proposed changes in relation to achieving the vegetation protection (and other) goals of the Agreement.
As stated in Mr. Coufal’s declaration (page 2):
…it is expected the Owens River diversion into the canals will occur less frequently. Given the loss of Mono Basin water available to the City of Los Angeles for export it is not likely to reach the capacity of the LAA as frequently as in the past.
There is no dispute that the Agreement allows some temporary operational flexibility of canal operations; however, the permanent reduction in the frequency of canal operations planned by LADWP is much more than a temporary operational change. Such a permanent change requires the prior approval of the Standing Committee. Standing Committee approval is required even if the reduction in the frequency of the operation of the canals is a result of less water being exported from the Mono Basin. Such a reduction in export is irrelevant to the Agreement. As set forth in the FEIR (Volume 1, page 2-9, Response to Master Comment PD-3):
According to the terms of the Agreement, the amount of water Los Angeles may obtain in the Owens Valley will be determined by factors independent from Mono Basin water. The abundance or scarcity of water in the Mono Basin has no effect on the proposed project in the Owens Valley.
As stated by LADWP’s own vegetation scientists, the condition of the vegetation in parcels 52, 82, and 85 is dependent on the frequency of the operation of the canals. The permanent reduction in the frequency of canal operations planned by LADWP will diminish the supply of water to this vegetation whose baseline conditions were created by LADWP’s surface water operations. Standing Committee approval is required before the reduction can be implemented.
Contention 25
LADWP contends that the County does not recognize that the City has varied the amount
of water diverted into the canals as a past management practice (LADWP Response, page 19).
Reply 25
As acknowledged above, there is no dispute that the Agreement allows some temporary operational flexibility of canal operations. As reflected in the Notice of Dispute, it has been the past practice of LADWP to vary the frequency and volume of diversions into the McNally canals and to distribute those flows within the canal system for the various uses described in LADWP’s LAA Operations Statement. The model scenarios presented on pages 16-23 and in Figure 8 of Appendix 2 to the Notice of Dispute clearly recognize and analyze a range of diversions.
REPLY TO ISSUES RAISED IN THE HUBBARD AND MARTIN AND JORAT
AND THE SAIC RESPONSES
The portion of LADWP Response contained in Hubbard and Martin and Jorat, and in the SAIC Technical Memorandum: Review of Inyo County Water Department Technical Appendices raises many narrow and specific issues and contentions. Rather than responding to these specific issues and contention in this portion of the County’s reply, they are addressed in the Attachments 1, 2 and 3 hereto.
CONCLUSION OF THE REPLY
For all of the reasons set forth in the Notice of Dispute and in this Reply, it should be determined that:
The Agreement and the applicable Dispute Resolution Procedures require that Issues 1 and 2 be promptly resolved without the unnecessary delay of referring the issues to the Technical Group.
The Agreement requires LADWP to promptly commence operations of the McNally canals to avoid causing a perpetuation of degraded vegetation conditions in the Laws area.
The Agreement requires prior Standing Committee approval of LADWP’s planned permanent reduction in the frequency of the operation of the McNally canals.
END