Our organization’s next restoration project brings the issues from National Audubon Society v. Superior Court into focus here in Santa Cruz, CA. Understanding the court case, as well as the Mono Lake Basin Water Right Decision 1631 from the State of California Water Resources Control Board (SCWRCB), places our team in a strong position to protect the second largest lake in our state. Mono Lake supports a large population of brine shrimp which nourish habitats for various birds who temporarily nest there during migration. Also, towers of tufa on the north and south shores are a tourist attraction being near the entrance of Yosemite National Park. The majority of the lake’s water supply came from snowmelt in the Sierra Nevada, and five freshwater streams at the range’s crest carry the annual runoff to the west shore.
In 1940, the Division of Water Resources, predecessor to the present SCWRCB, approved a permit for the Department of Water and Power of the City of Los Angeles (DWP) to have access to four of the streams flowing into the lake. The DWP constructed infrastructure to divert half of the flow into an aqueduct. In 1970, DWP installed another diversion tunnel to take all the water in the permitted streams. As a result, the lake’s level dropped by one-third. Additionally, one of the two main islands in the lake has become a peninsula which exposed the gull rookery to predators. Consequentially, the gulls have abandoned the space. Now, the continued diversions put the scenic beauty and ecology of Mono Lake at risk.
In 1983, the plaintiff National Audubon Society (NAS) filed suit to enjoin the lake diversions, based upon the public trust doctrine, and the majority opinion was written by Justice Broussard in the Alpine County Superior Court. The public trust doctrine declares the state’s authority as sovereign to exercise consistent control over the navigable waters within its borders.
Taking into account People v. Gold Run (1884) and People v. Russ (1901), the court stated that the public trust doctrine “protects navigable waters from harm caused by diversion of non-navigable tributaries” (Broussard 1983). However, the streams flowing into Mono Lake are not navigable. So, the court needed to decide whether the public trust doctrine applies to safekeeping each actual stream in itself. In Marks v. Whitney (1971), the public trust was revised to preserve a water body’s recreational and ecological values, and the decreased flow into Mono Lake does not align with that (Broussard 1983). The NAS argued that, since those values bring Mono Lake under the public trust, it is unethical for DWP to divert the tributaries flowing into it. Still, the county of Los Angeles clearly requires a large water supply, and its reliance on rights granted by the Division of Water Resources is evident. Based on the solutions examined at the time, the county’s cost of decreasing inflow would have been substantial. The court aimed to outline any basis the public trust doctrine has for challenging the DWP’s actions and decide whether the plaintiffs must exhaust administrative remedies with the SCWRCB before filing.
The court’s majority opinion determined the public trust doctrine should not have the sole power to prevent all diversions in the state. The opinion insisted decision-making should consider reliance the city of Los Angeles has on the streams, as well as the achievability and cost of acquiring water from another source. Clearly, common law played a significant role in the court’s decision because it knew taking away this water source would leave citizens of Los Angeles County thirsty and lacking resources for other municipal uses. It makes sense the court would not rule the diversion permits invalid before fully equipping the DWP with feasible alternative strategy. However, the verdict clarified, “before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests” (Broussard 1983). The court did not determine the allocation of water flowing to Mono Lake but instead decided that either the SCWRCB or the lower court could reconsider appropriations while honoring the values protected by the public trust.
The court insisted, as soon as the state has approved an appropriation, it has a duty to continue supervising the use of that water. If the state eventually concludes that previous allocations were incorrect in light of alternative information or changing situations, it may revoke the DWP’s right (Broussard 1983). Based on precedent, the court declared it has a concurrent jurisdiction with the SCWRCB and provided a procedure the courts can use as it refers water rights disputes to the state entity. Justice Richardson dissented only from the part of the opinion that determined the SCWRCB and superior court had concurrent jurisdiction. Instead, he said the SCWRCB should have had exclusive jurisdiction subject to judicial review. Regardless, the court’s findings granted power to the SCWRCB to revaluate the situation. Further, Broussard ordered the state to conduct a study showing impacts of the DWP’s diversion.
In 1994, the SCWCB amended the rights in the Mono Lake Basin Water Decision 1631. The document noted the stream water is being devoted to both municipal use and hydroelectric power production. This brings potential for our organization to assist by installing other alternative renewable energy electricity sources for Los Angeles County to replace hydroelectric being sourced from fragile sites. The order revised the license to set quantified in-stream flow requirements for the protection of fish in each of the four streams from which Los Angeles diverts water. So, while the court case did not completely halt the DWP’s damage to the lake’s ecology, it still brings opportunity for our organization to assist with remediation strategies.
The document outlines conditions needed to maintain fish resources in the four affected streams, as well as measures we need to actualize in order to protect additional public trust resources at the lake. The SCWCB orders the high-elevation lake must be restored to good condition to comply with federal air quality standards. Our job is to investigate the clean air regulations for this area and create a plan to reduce blowing dust from the currently exposed lakebed. We can show the Los Angeles County other stream restoration project blueprints so it can make progress on the SCWCB’s order to recover the waterfowl habitat which was lost due to the decline of Mono Lake. According to the document, “once the water level of 6,391 feet is reached, it is expected that Los Angeles will be able to export approximately 30.8 thousand acre-feet of water per year from the Mono Basin” (State of California Water Resources Control Board 1994). Our role is to assist Los Angeles County in reaching the goal, so, eventually, it can sustainably source water from the streams at Mono Lake without completely depleting it.
Clearly, the court case declared a massive municipal need for water is still going to be the main concern even in the case of ecological destruction and conflicting precedent. The ability for common law to persevere in the public trust doctrine’s context shows it is worth investigating how we may able to use that to our advantage pushing for waterway protection at other locations where precedent priorly would seem to dictate the outcome. Acting aligned with the court’s ruling, our mission is to truly minimize the damage inflicted on Mono Lake and perhaps brings less delicate sources into Los Angeles County’s water supply equation.
References:
SCOCAL, National Audubon Society v. Superior Court , 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346. Accessed April 24, 2020. https://scocal.stanford.edu/opinion/national- audubon-society-v-superior-court-30644
State of California Water Resources Control Board. 1994. “Mono Lake Basin Water Right Decision 1631.” Accessed April 24, 2020. https://www.waterboards.ca.gov/publica tions_forms/publications/general/docs/monolake_wr_dec1631_a.pdf