ITEM: 2

SUBJECT: PROPOSED ORDER REQUIRING CITY OF LOS ANGELES TO IMPLEMENT STREAM AND WATERFOWL HABITAT RESTORATION MEASURES IN THE MONO LAKE BASIN (WATER RIGHT LICENSES 10191 AND 10192, APPLICATIONS 8042 AND 8043)

DISCUSSION: On September 28, 1994, the State Water Resources Control Board (SWRCB) adopted Water Right Decision 1631 which amended the licenses under which the City of Los Angeles diverts water from four streams in the Mono Lake Basin. Decision 1631 established minimum flow requirements to protect fish downstream of water diversion structures as well as higher periodic flow requirements for stream channel maintenance. Decision 1631 also restricted water diversions in order to reach an average water elevation at Mono Lake of approximately 6,392 feet. Decision 1631 was adopted to protect fish and other public trust resources in the Mono Basin while allowing diversion of some water for municipal use.

Adoption of Decision 1631 resolved the major controversies regarding water exports from the Mono Basin, but the record in 1994 was not sufficient to determine what additional measures should be taken to promote recovery of streams and waterfowl habitat adversely affected by years of water diversions. Decision 1631 directed Los Angeles to consult with specified agencies and public interest groups and prepare plans for stream and waterfowl habitat restoration. The process for preparation and review of the plans was extended several times at the request of Los Angeles and other parties. Due to disagreements over the plans, the SWRCB held an eight day hearing ending on May 7, 1997. During the course of the hearing, several parties requested a recess in order to develop a proposed settlement for the SWRCB's consideration.

The provisions of the proposed settlement regarding stream restoration measures were supported by most parties to the hearing and not opposed by any of the participants. The proposed settlement and the proposed order provide for various stream restoration measures including: (1) reopening side channels in the Rush Creek bottomlands; (2) increased periodic flows, higher than those set forth in Decision 1631, for stream restoration purposes; (3) restrictions on grazing in riparian areas; and (4) a stream restoration monitoring program.

The proposed order provides for consideration of specific criteria identified in the settlement proposal, but establishes that the SWRCB's determination of when monitoring may be terminated will be based upon more general criteria involving the health of the fishery and the riparian ecosystem.

The waterfowl habitat restoration provisions of the proposed settlement call for Los Angeles to reopen specified side channels in the Rush Creek bottomlands and to pay $3.6 million to an account to be managed by a newly proposed foundation composed of representatives of several parties to the hearing. Rather than identifying the specific restoration measures to be implemented as required by Water Right Decision 1631, the proposed settlement calls for the new foundation to decide how most of the $3.6 million fund would be spent. Mono County, several local organizations and numerous individuals in the Mono Basin area opposed the waterfowl habitat provisions of the proposed settlement. The People for Mono Basin Preservation and the Bureau of Land Management introduced extensive evidence about potential adverse effects on fish, wildlife and other resources which could result from proposals to decrease flow in Wilson Creek in order to increase flows and waterfowl habitat in the Mill Creek area.

The proposed order recognizes that by far the most signifcant restoration of waterfowl habitat in the Mono Basin will occur due to the rising water level of Mono Lake and the restoration of flows in the tributary streams as required by Decision 1631. In addition, the proposed order directs Los Angeles to: (1) implement its plan for reopening side channels in the Rush Creek bottomlands; (2) provide financial assistance for waterfowl habitat restoration in the County Ponds and Black Point areas or other lake fringing wetlands; (3) participate in a controlled burning program subject to applicable permitting and environmental review requirements; (4) participate in interagency efforts to control Salt Cedar and other non-native vegetation; and (5) conduct a comprehensive waterfowl and waterfowl habitat monitoring program. The proposed order maintains direct accountability to the SWRCB of the holder of the water right license, Los Angeles.

The proposed order does not require funding of a new foundation to oversee waterfowl habitat restoration as called for in the proposed settlement, nor does it require Los Angeles to pursue proposals for restoration of Mill Creek.. The proposed order finds that the reduced flows in Mill Creek are due to changes which predate water diversions under Licenses 10191 and 10192 and that any proposal to significantly alter the distribution of flows between Mill Creek and Wilson Creek must be preceded by an environmental document which fully addresses potential impacts.

The proposed order authorizes the Chief of the Division of Water Rights to modify provisions of the stream and waterfowl habitat restoration program upon a showing of good cause, subject to the review of the SWRCB.

POLICY ISSUE: Should the SWRCB adopt the proposed order requiring the City of Los Angeles to pursue specified stream and waterfowl habitat restoration measures in the Mono Basin?

FISCAL IMPACT: None. Staff activities to support the proposed order are within budgeted resources.

REGIONAL BOARD IMPACT: Yes. The reopening of side channels in the Rush Creek bottomlands and any other actions involving disturbances or potential erosion affecting water quality in Mono Basin streams are subject to regulation by the California Regional Water Quality Control Board, Lahontan Region.

STAFF RECOMMENDATION: Staff recommends adoption of the proposed order.

7/16/98 DRAFT

SOURCES: Lee Vining Creek, Walker Creek, Parker Creek and Rush Creek

COUNTY: Mono

LICENSEE: City of Los Angeles

The following notation is used to cite information from the hearing record:

Citations to Hearing Transcript: Citations to the hearing transcript are indicated by a "T" followed by the starting page and line number, followed by the ending page and line number. (Example: T 136:10-136:24.)

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.

Abbreviations Used for Parties

DFG -- California Department of Fish and Game

DPR -- California Department of Parks and Recreation

SLC -- California State Lands Commission

CalTrout -- California Trout, Incorporated

DWP -- City of Los Angeles Department of Water and Power

MLC -- Mono Lake Committee

NAS -- National Audubon Society

PMBP -- People for Mono Basin Preservation

SWRCB -- State Water Resources Control Board

BLM -- United States Bureau of Land Management

USFS -- United States Forest Service

SOURCES: Lee Vining Creek, Walker Creek, Parker Creek and Rush Creek

COUNTY: Mono

LICENSEE: City of Los Angeles

BY THE BOARD:

1.0 BACKGROUND

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.

2.0 FINDINGS AND REQUIREMENTS OF DECISION 1631 REGARDING RESTORATION PLANS

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.

2.1 Prior SWRCB Findings Regarding Stream Restoration Plans

Decision 1631 concluded that restoration of continuous flows as specified for each of the affected streams was by far the most important step needed to restore and maintain the fisheries that existed prior to Los Angeles' diversions. The decision also concluded that providing channel maintenance and flushing flows for each stream will help to maintain conditions that benefit the fishery and will promote the recovery of adjacent riparian areas. (Decision 1631, p. 76.) The decision includes a number of specific findings regarding potential restoration measures for each of the four streams from which Los Angeles diverts water. (Decision 1631, pp. 37, 38, 45, 46, 52, 53, 74 and 75.) The SWRCB's findings regarding the need for additional stream restoration measures are summarized as follows:

"The evidence also establishes the need for a number of other measures to help restore and protect fish habitat in the four streams such as removal of livestock grazing, restriction of vehicular access, reopening historic side-channels and other measures specified in the findings regarding each specific stream. Those measures should be addressed in the stream restoration plan which LADWP is required to develop and submit in accordance with the amended terms of its water right licenses as specified at the end of this decision." (Decision 1631, p. 76.)

2.2 Prior SWRCB Findings Regarding Waterfowl Habitat Restoration Plans

Decision 1631 found that the loss of open water habitats and fresh water sites around Mono Lake due to water diversions by Los Angeles coincided with the decline in migratory waterfowl populations at Mono Lake, that the lake probably supported several hundred thousand ducks during the fall historically, and that the current (i.e., 1994) habitat probably supports a small fraction of historic numbers. (Decision 1631, p. 117.) The decision states:

"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."

"In view of the City of Los Angeles' need for water for municipal use . . . and in view of the competing public trust uses which would not best be served by a water level of 6,405 feet, this decision does not regulate LADWP's water diversions in a manner which would restore the maximum amount of waterfowl habitat. Increasing the water level to an average of 6,392 feet as called for in this decision, however, would allow for restoration of some of the lost habitat. Additional waterfowl habitat could be restored through other restoration measures identified in the record." (Decision 1631, pp. 117 and 118.) Footnote2

Decision 1631 goes on to discuss the "physical solution doctrine" as a basis for requiring Los Angeles to undertake waterfowl habitat restoration measures as part of a physical solution which would allow for continued diversion of water for municipal use. The decision states that, with the exception of the natural restoration which will occur due to restored flows and a rising lake elevation, the record in 1994 was insufficient to specify the waterfowl habitat restoration measures to be undertaken. The decision concludes that Los Angeles should be required to consider various waterfowl habitat restoration measures as part of the restoration plans required under the decision. (Decision 1631, p. 118.) The decision states:

"The SWRCB concludes that LADWP should be required to consult with DFG and other interested parties and analyze potential feasible waterfowl restoration projects which are consistent with the lake level established in this decision, consistent with the regulations governing the Mono Basin National Scenic Area, and which could avoid or properly mitigate any disturbance of archeological resources in the Mono Basin. LADWP's evaluation of potential waterfowl habitat restoration projects should focus on lake-fringing wetland areas." (Decision 1631, pp. 118 and 119.)

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.

2.3 Prior Findings Regarding Grant Lake Operations and Management Plan

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.

2.4 Requirements and Evaluation Criteria Governing Restoration Plans Required by Decision 1631

The general requirements and evaluation criteria governing the stream and waterfowl habitat restoration plans are stated on page 204 of Decision 1631 as follows:

"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 specific requirements and the evaluation criteria for the stream and waterfowl habitat restoration plans required by Decision 1631 are set forth on pages 204 through 211 of the decision. Among other requirements, the plans are required to include a method for monitoring results and progress of proposed restoration projects. In addition, Los Angeles was directed to "emphasize measures that have minimal potential for adverse environmental effects." (Decision 1631, pp. 206 and 207.)

3.0 PREPARATION OF RESTORATION PLANS SUBMITTED BY CITY OF LOS ANGELES

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.

(1) Executive Summary for the Stream Restoration, Grant Lake Operations and Management, and Waterfowl Habitat Restoration Plans;

(2) Stream and Stream Channel Restoration Plan;

(3) Stream and Stream Channel Restoration Plan Appendices;

(4) Grant Lake Operations and Management Plan;

(5) Grant Lake Operations and Management Plan Appendices;

(6) Waterfowl Habitat Restoration Plan; and

(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.

4.0 PARTICIPANTS IN HEARING

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.

DFG, SLC, DPR, MLC, NAS, CalTrout, USFS, and Richard Ridenhour submitted testimony and exhibits regarding various aspects of the initial restoration plans. Those participants later joined in requesting that the SWRCB adopt an order based on the March 28, 1997, proposed settlement agreement. Footnote3 Although DFG is a signatory to the proposed settlement agreement, DFG's primary witnesses testified about numerous problems with the approach to waterfowl habitat restoration under the provisions of the proposed settlement. (See Section 6.3 below.)

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.

A representative of Arcularius Ranch and Inaja Land Company participated in the early stage of the hearing prior to introduction of the settlement agreement, but did not participate when the hearing resumed on May 6, 1997. Correspondence from the Arcularius Ranch representative recommends that none of the flow modifications undertaken for stream restoration purposes should supersede or interfere with the provisions of Decision 1631 regulating the release of water from the Mono Basin into the Upper Owens River. Footnote4

Counsel for Arnold Beckman submitted testimony and other evidence relating to the water rights of the Conway Ranch under the 1914 Mill Creek Decree. Footnote5 The water rights which attach to the Conway Ranch could be relevant with respect to future changes in the use of water rights on Mill Creek. However, the present proceeding does not involve a proposal by either Los Angeles or Mr. Beckman to dedicate the Conway Ranch water rights to instream flows or other purposes related to restoration of Mill Creek. Therefore, based on the understanding that the SWRCB's decision on the waterfowl habitat restoration plan submitted by Los Angeles would not affect the status of the Conway Ranch water rights, counsel for Mr. Beckman withdrew from the proceeding. Footnote6

5.0 STREAM RESTORATION PLAN AND GRANT LAKE OPERATIONS PLAN

Sections 5.1 through 5.3 below address the stream restoration plan and related documents submitted by Los Angeles, the modifications to the Los Angeles plan in the proposed settlement agreement, and the SWRCB's analysis and conclusions regarding restoration proposals for Rush Creek, Lee Vining Creek, Parker Creek and Walker Creek. Footnote7

5.1 Stream Restoration Plan Submitted by Los Angeles

The stream restoration plan and related materials submitted by Los Angeles are the Stream and Stream Channel Restoration Plan (R-DWP-16), the Appendix to Stream and Stream Channel Restoration Plan (R-DWP-17), the Grant Lake Operations and Management Plan (GLOMP) (R-DWP-18), the Appendix to Grant Lake Operations and Management Plan (R-DWP-19), and the Comments and Responses to Comments on the Draft Stream Restoration, GLOMP, and Waterfowl Habitat Restoration Plans (R-DWP-21). Los Angeles also submitted two documents describing its proposed plan for monitoring the recovery of the four Mono Basin streams from which it diverts water. (R-DWP-22 and R-DWP-23.) Los Angeles presented detailed written and oral testimony in support of the stream restoration proposals described in its planning documents. (See e.g., R-DWP-24 through R-DWP-32.)

The stream restoration program proposed by Los Angeles establishes the overall goal of developing "functional and self-sustaining stream systems with healthy riparian ecosystem components." The program proposes to "restore the stream systems and their riparian habitats by providing proper flow management in a pattern that allows natural stream processes to develop functional, dynamic, and self-sustaining stream systems." The stream restoration plan depends primarily on providing high seasonal flows which equal or exceed the channel maintenance flow requirements established in Decision 1631 for all types of years. Footnote8 (R-DWP-16, p. vi.)

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, installation of fish screens on irrigation diversions, 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.

The stream restoration plan contains a detailed description of the work to be done, the proposed schedule for undertaking various projects and the cost of each proposed restoration measure. The estimated cost of the stream restoration work proposed by Los Angeles is $2 million. (R-DWP-16, pp. vii and viii.)

Los Angeles presented testimony from experts with experience in stream restoration and fishery biology in support of its proposed restoration plan. The expert witnesses presented by Los Angeles included Dr. William Trush and Mr. Christopher Hunter who had previously participated in portions of the interim restoration work undertaken by the former Restoration Technical Committee (RTC) at the direction of the Superior Court. (R-DWP-6, R-DWP-7, R-DWP-31.) Both Dr. Trush and Mr. Hunter supported the concept of promoting stream restoration primarily through providing appropriate flows to aid the natural recovery of the stream and adjoining area. Both also recognized that high stream flows which occurred prior to the 1997 hearing washed out much of the structural stream restoration work that had been attempted in previous years. (T 326:12-329:9.) Dr. Trush testified that even if the required flows were insufficient to affect channel morphology, he could not "recommend structures because it wouldn't make any sense; they would go away." (T 328:7-328:22.)

Los Angeles presented testimony from several other witnesses in support of a flow-based approach to stream restoration. Dr. Robert Beschta and Dr. Boone Kauffman testified that some of the well-intended human interventions to promote stream restoration undertaken in recent years actually had detrimental effects on the establishment of vegetation and improvement of channel morphology. (T 68:3-68:25; T 83:1-83:15.) Dr. Beschta and Dr. William Platts agreed that providing appropriate flows and control or removal of grazing in riparian areas are the most desirable elements of a stream restoration program. (T 69:16-69:19; T 331:12-332:18.) Although Dr. Platts recognized the need for sediment bypass structures and monitoring, he testified that providing proper flows and land management are the essential elements of stream restoration. Dr. Platts described various other restoration proposals for the streams under consideration as things which are "done to make people feel good," not necessarily to help the fish populations. (T 332:5-332:18.)

Dr. Kauffman testified that the re-establishment of willows, cottonwoods and riparian vegetation along the Mono Basin tributaries is among the highest that he has seen on any riparian ecosystem in the Western United States. (T 75:1-76:20.) Biologist Brian Tillemans presented extensive testimony and photographic evidence regarding the recovery of the Mono Basin streams following the restoration of flows and the imposition of a grazing moratorium. (R-DWP-25; R-DWP-37 through R-DWP-62; and T 47:1-61:15.) Mr. Tillemans testified that he is confident that the Los Angeles stream restoration proposals will produce high quality streams and an overall fishery that is better than what existed before Los Angeles began its Mono Basin diversions. (T 49:4-49:14.) Dr. Beschta and Dr. Platts also testified that they believe the restoration program will result in better stream conditions than existed in 1941. (T 103:2-104:15.)

5.2 Proposed Settlement Agreement Regarding Stream Restoration Projects

The proposed settlement agreement calls for Los Angeles to implement its stream and stream channel restoration plan with certain specified changes. The changes are summarized as follows:

(1) The "channel maintenance flows" proposed in the Los Angeles plan are increased for specified water year types based upon flow recommendations in a February 13, 1996 memorandum of the "ad hoc flow committee" until such time as the SWRCB determines that the stream restoration program is complete. Footnote10

(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.

5.3 Analysis of Stream Restoration Proposals

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.

5.3.1 Higher Peak Flows to Promote Stream Restoration and Recovery

The stream restoration plan and the settlement proposal both call for providing higher peak flows to help promote recovery of the streams and stream channels. Footnote11 The flows now proposed are higher than the channel maintenance flows which were established in Decision 1631 based on the testimony presented by DFG in 1994. In addition to the fishery flow and channel maintenance flows established in Decision 1631, the decision provides that Los Angeles' diversions from the Mono Basin are subject to additional limitations up until the time the water elevation in Mono Lake reaches 6,391 feet. Therefore, until that time, there will frequently be more water in the four affected streams than would be needed solely to comply with the instream flow requirements and the channel maintenance flows required under Decision 1631. Footnote12

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 steam 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.

5.3.2 Stream Monitoring

Decision 1631 provided that the monitoring program proposed in the stream restoration plan shall identify how results of "restoration activities will be distinguished from naturally occurring changes." (Decision 1631, p. 207.) In those instances where artificial replanting is undertaken or where "structural measures" such as placement of woody debris are undertaken, it may be possible to distinguish changes due to intentional restoration activities from "naturally occurring changes." However, in the case of a restoration program which relies primarily on "natural changes" related to increased flows, it generally will not be possible to distinguish the results of restoration activities from naturally occurring changes. (T 153:16-155:3.)

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.

Several experts on stream and fishery restoration testified in support of monitoring the restoration and recovery of the four affected streams. Their testimony highlights the difficulty in attempting to specify criteria for establishing when restoration should be considered complete. Dr. Kauffman testified that ecological restoration is an ongoing process which is not completed at any one point in time, but the restoration plan proposed by Los Angeles "sets the ecosystem in the right trajectory for a goal of naturally functioning ecosystems" similar to predisturbance conditions. (T 108:14-108:23.) Dr. Trush testified that the scientists on the former RTC had difficulty in trying to define endpoints for stream restoration on Lee Vining Creek, and decided to "replace the idea of an end product, and endpoint, with a process, with the idea that the channel can be made to react and function alluvially. . . ." (T 129:17-131:6; 155:4-155:23.) Mr. Hunter agreed with Dr. Trush about the difficulty of establishing quantitative stream restoration goals. He explained the RTC:

". . . 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.

"In the long run, this is probably a much better approach, to make sure that those processes are actually happening that create fish habitat or create seedbeds for riparian vegetation . . . ." (T 134:1-136:1.)

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.

Based on the record before us, this order provides that the SWRCB's eventual determination of when the stream restoration monitoring program may be discontinued will be based on consideration of the following factors:

(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.

(2) Whether the stream restoration and recovery process has resulted in functional and self-sustaining stream systems with healthy riparian ecosystem components for which no extensive physical manipulation is required on an ongoing basis. Footnote15

The first of these factors reflects the importance of providing appropriate fishery habitat pursuant to the provisions of Fish and Game Code sections 5937 and 5946, and the direction of the Court of Appeal in California Trout v. Superior Court (1990) 218 Cal.App.187 [266 Cal.Rptr. 788]. The second factor is based on the overall goal of the stream restoration plan submitted by Los Angeles and is consistent with the emphasis the stream restoration scientists place on establishment of ecological processes. Footnote16

5.3.3 Provisions of Proposed Settlement Regarding Rush Creek Return Ditch, Placement of Large Woody Debris, Reopening Side Channels, Sediment Bypass Facilities, Fish Passage Facilities, the Grant Lake Operations and Management Plan, and Flow Data Collection Facilities

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.

5.4 Higher Streamflows Due to Additional Water Needed to Maintain Water Level of Mono Lake

Until the water elevation of Mono Lake reaches 6,391 feet, the water diversion criteria established in Decision 1631 limit water exports from the Mono Basin based on the need for additional water to raise the water level in the lake. These restrictions on diversions are in addition to the restrictions needed to meet the instream flow requirements and channel maintenance flow requirements in Decision 1631. The Grant Lake Operations and Management Plan refers to this water as "Mono Lake maintenance water." The plan proposes to release a portion of the "Mono Lake maintenance water" to increase the "base" flows for instream purposes in the four affected streams in some months of some water year types as set forth in Table 1 on page x of the plan. (R-DWP-18.)

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.

5.5 Summary and Conclusions Regarding Stream Restoration Plan

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.

No evidence was presented concerning the relationship between the higher peak flows recommended in the proposed settlement and the regulation of water exported from the Mono Basin which is discharged as flow into the Upper Owens River. Therefore, it is appropriate to provide that this order does not alter the requirements governing discharges from the East Portal to the upper Owens River. Footnote17

The SWRCB's enforcement authority regarding requirements established in a water right decision stems from the Board's jurisdiction under the Water Code, the California Constitution and the public trust doctrine over the diversion and use of water. Consequently, it is appropriate for the requirements of a water right decision or order to be directed at the water right holder or other party whose diversion or use of water is under consideration. The requirements in this order are structured to avoid improper delegation of SWRCB authority and to allow for effective enforcement of the order by the SWRCB or the Chief of the SWRCB's Division of Water Rights. Footnote18

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.

6.0 WATERFOWL HABITAT RESTORATION PLAN

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 6.2 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.

6.1 Waterfowl Scientists' Report

Most of the proposed waterfowl habitat restoration projects addressed at the hearing were based in whole or in part on a report dated February 1996 prepared by Dr. Roderick C. Drewien, Dr. Frederic A. Reid and Mr. Thomas D. Ratcliff pursuant to a contract with Los Angeles. (R-DWP-20, Appendix I.) The report concludes that the most important and highest priority restoration effort is to increase the lake level to 6,392 feet as ordered in Decision 1631. The increased lake elevation is expected to "restore the largest acreage, and the most diversity of waterfowl habitats." (R-DWP-20, Appendix I, p. 111.) For example, in the Lee Vining Creek area, the scientists estimate that rising lake levels and increased stream flows will result in an increase of 8 to 10 acres in the hypopycnal environment, Footnote20 formation of 20 to 40 acres of brackish lagoons, and 10 acres of restored riparian area in the Lee Vining Creek bottomlands. (R-DWP-20, Appendix 1, p. 92.) Footnote21

The second priority recommended in the report would be to rewater Mill Creek. Other recommended projects include rewatering "distributaries" in the Rush Creek bottomlands, developing additional freshwater habitats in the County Ponds and Black Point areas, developing a prescribed burn program to enhance marsh and wetland habitats, developing a program to remove the non-native plant Salt Cedar (Tamarisk) in lake fringing wetlands, investigating the feasibility of enhancing artificial ponds near Simons Springs and creating other shallow ponds in lake-fringing areas, and implementing a detailed monitoring program to evaluate changes in habitats and to determine the responses of waterfowl populations to restoration efforts and rising lake levels. (R-DWP-20, Appendix I, pp. 111-114.)

PMBP presented testimony regarding a lengthy conversation in which Mr. Ratcliff disagreed with some of the main recommendations of the report, particularly the emphasis placed on restoring Mill Creek as a means of providing waterfowl habitat. (T 1742:13-1745:10.) Footnote22 Of the three authors of the report, only Dr. Reid testified in the SWRCB proceedings. Dr. Reid testified that his opinion regarding the expected success of the proposal to rewater Mill Creek was based on the assumption that the USFS water rights for DeChambeau Ranch would be dedicated to instream use on Mill Creek. (T 980: 4-980:21.)

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.

Dr. Reid testified that Ducks Unlimited, the organization for which he works, has a reputation for promoting cost-effective waterfowl habitat restoration. In 1993, Dr. Reid testified that Ducks Unlimited typically undertakes projects which cost about $100 per acre and generally does not get involved in waterfowl habitat restoration proposals that cost more than $1,000 per acre. (T 970:16-973:24.) Yet the County Ponds proposal described in the scientists' report proposes to restore approximately 20 acres of ponds at an estimated cost of $638,437, or approximately $31,922 per acre. (R-DWP-20, Appendix 1, p. 89.)

There was other evidence indicating that waterfowl habitat projects on the eastern slope of the Sierra are typically more expensive than restoration projects in other areas. Dr. Reid acknowledged that the cost of the County Ponds proposal was high but said the proposal was considered a reasonable project "based on the fact that there were few other options for creating fresh water habitat." (T 973:1-973:24.) Nevertheless, on a per acre basis, the County Ponds proposal described in the scientists' report is more than twice as costly as the DeChambeau Ponds restoration project jointly undertaken by the Forest Service, Ducks Unlimited and MLC, and much more costly than the alternative of providing water to the County Ponds area through resumption of diversions from Wilson Creek under USFS water rights. (See Section 6.4.3.) The Los Angeles waterfowl habitat restoration plan concluded that the three phase project that includes the County Ponds proposal as described in the waterfowl scientists' report "is not financially feasible without significant funding contributions from other sources." (R-DWP-20, p. 23.)

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.

6.2 Waterfowl Habitat Restoration Plan Submitted by Los Angeles Department of Water and Power

The waterfowl habitat restoration plan submitted by Los Angeles is based in large part upon the recommendations in the waterfowl scientists' report. However, the role of Los Angeles in carrying out and funding some of the restoration proposals was modified based on an assessment of economic costs and reasonableness. The plan also includes significantly more information regarding the costs of the proposed projects, methods of financing, a proposed implementation schedule, and the review and approval of other agencies having jurisdiction. The plan recognizes the importance of rising lake levels as identified in the scientists' report. The Los Angeles plan proposes to: partially rewater Mill Creek; rewater distributaries in the Rush Creek bottomlands; develop habitat in the DeChambeau Ponds, County Ponds, and Black Point areas; develop a prescribed burn program for lake-fringing wetlands; and participate in interagency efforts to control Salt Cedar. (R-DWP-20, pp. vi, vii and 10.)

The estimated initial cost to be borne by Los Angeles under its plan is $150,000 including the cost of environmental documentation. The Los Angeles plan proposes to secure $753,000 in outside funding for habitat restoration work in the DeChambeau Ponds, County Ponds, and Black Point area. In accordance with the recommendation of the waterfowl scientists' report, the main portion of the $753,000 would go for development of ground water supplies to replace surface water which has previously been available under the USFS right. In addition, Los Angeles estimates that its plan would involve average annual expenses of $180,000 of which approximately $140,000 would be used for annual monitoring expenses. (R-DWP-20, p. vii.)

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.

6.3 Proposed Settlement Based on Waterfowl Habitat Restoration Foundation Conceptual Agreement

The proposed settlement regarding waterfowl habitat restoration calls for payment by Los Angeles of $3.6 million to a proposed Mono Basin Waterfowl Habitat Restoration Foundation composed of DPR, SLC, DFG, USFS, NAS, and MLC. With the exception of waterfowl habitat restoration in the Rush Creek bottomlands as previously proposed in the Los Angeles plan, Los Angeles would be relieved of any obligation for waterfowl habitat restoration. Any further waterfowl habitat restoration measures would be carried out at the direction of the foundation in accordance with the provisions of the Mono Basin Waterfowl Habitat Foundation Conceptual Agreement. (R-DWP-68A.) The conceptual agreement calls for:

(1) Spending $410,000 for monitoring various conditions relevant to waterfowl and waterfowl habitat over the next ten years;

(2) A preliminary allocation of $340,000 for "restoring, operating, and maintaining open water habitat over the next ten years;" Footnote23

(3) Rewatering Mill Creek with year-round flows following environmental evaluation "consistent with the California Environmental Quality Act and the National Environmental Policy Act to determine the appropriate water allocation to achieve the waterfowl scientists' restoration goals;" Footnote24 and

(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.

Although DFG officially supports approval of the entire settlement agreement, the testimony of DFG witnesses raises questions regarding whether the approach to waterfowl habitat restoration taken in the settlement agreement is reasonable, cost effective, or likely to result in productive waterfowl habitat restoration. In response to questioning by the representative of PMBP, DFG's Environmental Services Division Chief acknowledged having previously referred to the waterfowl portion of the settlement agreement as the "Mono Lake Committee Full Employment Act" and that he had stated that he "didn't want to be any part of it." (T 1585:4-1586:13.) Footnote25 Similarly, the DFG biologist most involved with waterfowl habitat issues in the Mono Basin testified at length regarding numerous deficiencies of the proposed settlement regarding waterfowl habitat restoration. (T 1586:14-1620:19.)

Whatever merit the conceptual agreement on waterfowl habitat restoration may have, it is clear that the measures called for in the agreement do not comply with the requirements of Decision 1631. Contrary to the requirements of Decision 1631, the conceptual agreement does not identify most of the specific restoration measures to be undertaken; it does not identify the estimated costs for most of the proposed projects; it does not specify an implementation schedule for most of the work that is to be done; and it does not identify the estimated water requirements for proposed projects. Contrary to the direction of Decision 1631 that the proposed restoration plans "shall emphasize measures that have minimum potential for adverse environmental effects," the conceptual agreement places a high priority on the rewatering of Mill Creek despite strong evidence that rewatering Mill Creek could result in significant adverse effects to fish and other public trust resources dependent upon flow in Wilson Creek. Footnote26

Decision 1631 called for a cooperative restoration planning process, followed by a decision on what measures were to be pursued and, finally, followed by implementation of the selected measures. SWRCB approval of the conceptual agreement would essentially establish a new planning process with no resolution of what specifically is to be done, at what cost, where, or with what environmental impacts. The SWRCB's clear authority over a water right licensee would be replaced by a less clear oversight role with respect to a newly created foundation not subject to the statutory authority of the SWRCB. Footnote27

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.

6.4 Analysis of Waterfowl Habitat Restoration Proposals

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 Footnote28 areas at the mouths of Rush Creek and Lee Vining Creek. Footnote29 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.

Dr. Scott Stine testified that, with the flow requirements for Rush Creek and Lee Vining Creek established in Decision 1631, there will be larger hypopycnal areas at Mono Lake during the fall and winter than existed under natural conditions. (T 1818:5-1818:20.) The increased hypopycnal areas will be present during the most important periods for waterfowl habitat in the Mono Basin. (T 1842:1-1842:17.) Thus, the requirements of Decision 1631 will restore a significant amount of important waterfowl habitat through increasing the water level of Mono Lake and restoring large hypopycnal areas at the mouths of Rush Creek and Lee Vining Creek. Footnote30

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.

6.4.1 Restoration of Secondary Stream Channels in Rush Creek Bottomlands

The long periods of little or no flow in Rush Creek due to diversion of water by Los Angeles resulted in major changes in the configuration of Rush Creek and the adjoining side channels or distributaries. The waterfowl scientists' report states that approximately 15 acres of waterfowl habitat in the Rush Creek "delta trench" will be restored by the rising lake level and "many" more acres of habitat can be restored by rewatering abandoned channels. Approximately 58 acres of habitat in the Rush Creek bottomlands was considered to be irretrievably lost due to stream incision. (R-DWP-20, Appendix I, p. 54.) The predicted net loss of bottomlands habitat along Rush Creek is approximately 43 acres. (R-SLC/DPR-403, p. 6.)

The waterfowl scientists' report recommends that several secondary stream channels be reopened in the Rush Creek bottomlands to provide small flows for restoration of waterfowl habitat in backwater depressions. The report recommends that consideration be given to sites which will be self-maintaining and which will not require extensive maintenance. The report also advises that mechanical disturbance to surface areas should be minimized. The report identifies five specific channels and channel complexes which have a high potential for waterfowl habitat restoration. (R-DWP-20, Appendix I, pp. 91 and 92.)

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.

The proposed settlement agreement provides that Los Angeles will carry out the reopening of Rush Creek channels as specified in its waterfowl habitat restoration plan. (R-DWP-68A, p. 12.) There was no evidence or argument presented in opposition to the proposed restoration of waterfowl habitat through reopening the Rush Creek distributaries. Based on the evidence before us, the SWRCB concludes that the proposal to rewater the Rush Creek distributaries as described in Los Angeles' waterfowl habitat restoration plan meets the requirements of Decision 1631 and should be implemented. Footnote31

6.4.2 Rewatering of Mill Creek

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.

Due to water diversions for agriculture and power production, the wetland areas adjoining Mill Creek did not contribute significant habitat to the abundant waterfowl populations reported at Mono Lake during the early 1930's to early 1960's. (R-DWP-20, Appendix I, p. 97.) The waterfowl scientists' report discusses the possibility of restoring a portion of the riparian habitat and vegetation which once adjoined Mill Creek as a means of mitigating for losses of similar habitat elsewhere in the Mono Basin. The report cites a study by Dr. Stine who estimated that restoration of flow to Mill Creek could create "approximately 14 acres of hypopycnal environment at the mouth of Mill Creek, 16 acres of riparian wetlands in the stream bottomlands, and 25 acres of riparian vegetation on the exterior delta . . . ." (R-DWP-20, Appendix I, p. 97.) The scientists' report acknowledges that restoring the maximum amount of waterfowl habitat in Mill Creek would require reinstating most, if not all, of the annual flows which are currently in Wilson Creek. Although the report places a high priority on increasing flows to Mill Creek, it recognizes that: "[r]estoration of all potential waterfowl habitat on Mill Creek does not appear feasible under current conditions due to complicated issues involving water rights and the need for structural improvement to convey increased flows." (R-DWP-20, Appendix I, pp. 97 and 98.) Footnote32

The scientists' report goes on to recommend: (1) dedication of Los Angeles' water right on Mill Creek to restoration of instream flows in Mill Creek; (2) possible dedication of the USFS water right for use in rewatering Mill Creek; (3) reopening of several Mill Creek channels; (4) assessing the feasibility of reopening other Mill Creek channels; and (5) negotiations among Los Angeles and other parties with the Conway Ranch and other entities to explore methods of obtaining water during the September to March period. (R-DWP-20, Appendix I, pp. 98 and 99.) Despite the presence of elevated flows in Wilson Creek since early in this century and the development of an extensive riparian zone, self sustaining Brown trout fishery, and varied wildlife populations dependent upon the existing pattern of flow, the report refers to Wilson Creek as "historically an ephemeral channel, flowing only at peak runoff" which has limited value to waterfowl and little potential for restoration. Without any discussion of the fish, wildlife, and other resources dependent upon Wilson Creek, the report concludes that the "best ecological use of current Wilson Creek water is to return most of it to Mill Creek as close to the headwaters as possible." (R-DWP-20, Appendix I, p. 99.)

The scientists' recommendation to pursue rewatering Mill Creek through use of flows now in Wilson Creek was carried over to the proposed settlement as set forth in the provisions of the conceptual agreement. The conceptual agreement "endorses" the recommendations of the February 1996 waterfowl scientists' report and provides that the "proposed project" is rewatering Mill Creek with high springtime and summer flows, high flows during late summer and fall to ensure maximum water availability during times when waterfowl are most abundant, and rewatering abandoned channels in the bottomlands and delta trenches in order to maximize spring recharge and provide for large hypopycnal areas beyond the stream mouth. (R-DWP-68A, pp. 1 and 3.) Footnote33

Dr. Stine testified that he expected that the proposed rewatering of Mill Creek botttomlands could "provide habitat for hundreds, but not thousands or tens of thousands, of ducks." (T 1823:18-1823:25.) Dr. Stine went on to explain that the primary purpose of rewatering Mill Creek would be to increase the hypopycnal area at the mouth of Mill Creek. (T 1824:8-1825:13.) In a meeting before a group in the Mono Basin, Dr. Stine explained his views regarding Mill Creek restoration as follows:

"The reason this [the rewatering of Mill Creek] is being discussed in terms of ducks is that the waterfowl issue has been raised by the State Water Board. There have been lots of us, who for a long time, have been seeing that in terms of an environmental issue, in terms of a species issue, in terms of a nature issue, Mill Creek is the big issue left in the Mono Basin. Not just because of waterfowl, but for lots and lots and lots of reasons. So I would -- just want to make it clear that by putting water back into Mill Creek is not being suggested simply because of waterfowl. I would say that there's [sic] a relatively one of, perhaps even one minor element, of a whole bunch of different elements of why to rewater Mill Creek, why to put Mill Creek back to the way it has been for the past 10,000 years." (R-PMBP-31; T 1828:25-1831:13.)

Although Dr. Stine believes that many of the resources currently served by water in Wilson Creek could continue to be served if flows were returned to Mill Creek, he believes that it would not be possible to restore the hypopycnal area at the mouth of Mill Creek and retain sufficient water in Wilson Creek to protect the existing year-round fishery. (T 1836:4-1837:21.)

Testimony and exhibits submitted by several parties referred to the existing brown trout fishery in Wilson Creek. (e.g., R-BLM-3, p. 3; R-PMBP-30, pp. 2, 13 and 14.) In commenting on a proposed hydroelectric project on Wilson Creek in 1993, DFG stressed that Wilson Creek had a self-sustaining brown trout fishery which compared favorably with other streams in the area, and that "[i]nstream flows necessary to maintain this population in good condition are required by law." (R-PMBP-18, DFG letter dated June 1, 1993 regarding "Paoha Project," FERC No. 3259.) The testimony of Dr. Stine and others indicates that there appears to be insufficient flow in Wilson Creek and Mill Creek to simultaneously restore the large hypopycnal area at the mouth of Mill Creek and maintain sufficient flow in Wilson Creek to maintain the existing fish in good condition. Footnote34

BLM presented written and oral testimony from Terri Russi, a wildlife biologist with 14 years of experience in BLM's Bishop Resources Area in which the Mono Basin is located. (R-BLM-3; T 806:13-812:21.) Over a period of 18 years, BLM has developed an extensive data base on all reaches of Wilson Creek. BLM's evaluation of the available data led it to classify Wilson Creek in the highest available ranking for streams under the Department of the Interior's system for evaluating the ecological status of streams on public land. BLM reported that "[r]iparian vegetation conditions and streambank stability are robust" throughout Wilson Creek. BLM describes the vegetation along Wilson Creek as "structurally and compositionally varied, providing not only an important mix of wildlife habitats but ecologically important reference sites as well." BLM reports that a "highly diverse assemblage of birds and mammals" uses the riparian corridor of Wilson Creek, including a "high number of songbird species, waterfowl, . . . mule deer, and an unusually high density of small mammals dominated by meadow voles and shrews." (R-BLM-3.) Footnote35

BLM expressed concern that Los Angeles' waterfowl habitat restoration plan failed to consider the presence and value of physical and biotic conditions between the point where water is diverted into Wilson Creek and Highway 167, a distance of approximately 3.4 stream miles. BLM concludes that:

". . . the goal of creating habitat on Mill Creek, at what may be the eventual expense of the substantial natural values along Wilson Creek is not supported by current practices employed in landscape (ecosystem) management and the wise conservation of biodiversity." (R-BLM-3; see also T 806:13-813:2.)

Biologist Brian Tillemans testified that Wilson Creek provides some of the best waterfowl habitat in the north shore area at the present time and that he would be very concerned about impacts to waterfowl if all the flow were removed from Wilson Creek. (T 658:7-658:25.) Similarly, PMBP presented testimony of long-time Mono Basin resident Joseph Bellomo that terminating irrigation of upper and lower Thompson Meadows in order to increase flows in Mill Creek, as proposed in the waterfowl habitat restoration plan, would cause the destruction of large meadow areas which provide habitat for many species of birds including geese which graze on grass in the meadows. (R-PMBP-30, pp. 1-6.)

PMBP introduced petitions with over 300 signatures of many long-time Mono Basin residents and others opposed to restoration of Mill Creek at the expense of Wilson Creek. (R-PMBP-27.) The depth of the local residents' opposition to sacrificing resources dependent upon flows in Wilson Creek is evident in the declarations of Martin A. Strelneck, Don L. Banta, Lily La Brague Mathieu, Heidi Hess-Griffin, August Hess, and Jeffrey P. and Kathleen A. Hansen. (R-PMBP-10, R-PMBP-11, R-PMBP-12, R-PMBP-13, R-PMBP-14, and R-PMBP-15.) Several participants in PMBP have described the prospect of attempting waterfowl habitat restoration along Mill Creek at the expense of the existing wildlife and other resources dependent upon flows in Wilson Creek as "restoration by destruction." In addition to the fish, wildlife and riparian resources in the immediate vicinity of Wilson Creek, PMBP urges the SWRCB to consider the wildlife, recreational, aesthetic, and cultural heritage benefits served by continued irrigation of nearby ranches. (T 1309:8-1325:23.)

It is apparent from the testimony and other evidence presented by PMBP that many Mono Basin residents view Wilson Creek and the resources dependent upon it from a distinctly different perspective than is reflected in the waterfowl scientists' report. Rather than seeing Wilson Creek as an unnatural, historic artifact to be disregarded in the pursuit of restoring "natural conditions," the record shows that many Mono Basin residents view Wilson Creek, and the resources dependent upon its flow, as being an invaluable part of their heritage with benefits to fish, wildlife, recreational users, and the scenery. Rather than focusing on the fact that the current channel configuration and flows of Wilson Creek did not exist some 80 to 100 years ago, the participants in PMBP urge that full consideration be given to the current uses and condition of the stream. Footnote36

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. Footnote37 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.

In summary, the diversion of water under Licenses 10191 and 10192 did not cause the reduction of flows in Mill Creek. In view of the increased hypopycnal areas at near the mouths of Rush Creek and Lee Vining Creek resulting from the flows required by Decision 1631, the need for an expanded hypopycnal area near the mouth of Mill Creek has not been established. The record indicates that the other benefits which rewatering Mill Creek would provide for waterfowl habitat are relatively minor. The present level of flow in Wilson Creek serves a wide variety of resources including fish, wildlife, recreation, irrigation, and scenic values which have not been adequately addressed or considered by the proponents of restoring Mill Creek. In contrast to the rewatering of small distributaries in the Rush Creek bottomlands discussed in Section 6.4.2, the proposal to rewater Mill Creek at the expense of present flows in Wilson Creek has a high potential for significant adverse environmental impacts.

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.

6.4.3 DeChambeau Ponds, County Ponds and Black Point

The waterfowl scientists' report briefly discusses the historical development of artificial freshwater ponds on the DeChambeau Ranch which were heavily used by waterfowl. The report states that by 1992 only two of the ponds held water due to degradation from lack of maintenance. (R-DWP-20, Appendix I, p. 79.) Based on the recommendations in the scientists' report, the waterfowl habitat restoration plan submitted by Los Angeles discusses a three-phase project in the DeChambeau/County Ponds/Black Point area which would involve: (1) installation of underground irrigation pipe from an existing well to irrigate 10 acres of riparian vegetation and small depressional wetlands near DeChambeau Ponds at an estimated initial cost of $90,000; (2) artificial flooding of 20 acres in the County Ponds complex with water from new wells at an estimated cost of $640,000; and (3) increasing wetlands in the Black Point area by up to 10 acres through making two to five shallow scrapes which would be flooded with water from an existing artesian well. Los Angeles' waterfowl habitat restoration plan states that the three-phase project, as proposed in the waterfowl scientists' report, is not financially feasible without significant funding contributions from other sources. (R-DWP-20, p. 23.)

The DeChambeau Ponds and County Ponds areas are located on the DeChambeau Ranch which was acquired by the USFS on February 7, 1992. Prior to acquisition by the USFS, the ranch utilized water from Wilson Creek for irrigation and for maintenance of the water level in DeChambeau Ponds. The water from Wilson Creek has also served to maintain riparian and wet meadow habitat and some freshwater habitat in the County Ponds area. Due to the poor condition of the ditches from Wilson Creek, and opposition to continued use of surface water for maintenance of ponds, the USFS ceased irrigation of DeChambeau Ranch from Wilson Creek in 1992 or 1993. (T 759:22-765:22.) The absence of a gaging station to verify that USFS diversions from Wilson Creek were within its 12.6 cubic feet per second water right also contributed to the decision to stop diverting water from Wilson Creek for use on DeChambeau Ranch. (T 796:11-796:13.)

In 1992 the USFS, Ducks Unlimited and the MLC undertook a project to restore waterfowl habitat at the DeChambeau Ponds. The waterfowl scientists' report states that the project was completed at a cost of $430,000 in September 1995 and that it includes 15 acres of ponds and 20 acres of seasonal meadows. (R-DWP-20, Appendix 1, p. 79.) Testimony at the hearing addressed the problems of unexpectedly high leakage from the ponds, the high cost of running propane pumps to supply groundwater to the ponds, the fact that some of the ponds were not yet full, the additional work still needed in 1997 to complete the project, and the relatively slight use of the ponds following restoration efforts. (T 773:21-778:11; T 779:24-778:11.) Footnote39

PMBP presented the testimony of Joseph Bellomo regarding recent work by local residents and the USFS to repair the ditch systems and headgates, and resume diversion of water from Wilson Creek for irrigation and wildlife enhancement at the DeChambeau Ranch. Following the resumption of water deliveries to DeChambeau Ranch as a result of the repairs, there was an increase in birds on the ranch, including ducks on a new shallow ponded area. The testimony indicates that a substantial amount of work was done at minimal cost over a period of three weekends with volunteer labor and USFS assistance. Footnote40 In addition to resuming irrigation of the ranch, the joint USFS/volunteer effort also makes it possible to deliver surface water from Wilson Creek to serve the troubled DeChambeau Ponds project and the surrounding area. Footnote41 (T 1715:15-1726:1.) A letter from the USFS dated May 4, 1997 confirms that the USFS has resumed irrigation of DeChambeau Ranch in order to assess the feasibility of resuming use of the existing ditch system. The letter also reaffirms that any changes from the historic use of the USFS water right would be examined in a separate environmental analysis. (R-PMBP-42.)

The recent resumption of irrigation of the DeChambeau Ranch with water from Wilson Creek is consistent with USFS policy as set forth in the "Decision and Finding of No Significant Effect Concerning the Environmental Assessment for the DeChambeau Enhancement Project" entered on May 26, 1993. (R-PMBP-43.) Although the testimony establishes that the USFS did not irrigate the ranch from Wilson Creek for several years, the 1993 decision called for development and repair of the DeChambeau Ditch, with a pipeline, as well as development of wells to supply water for the DeChambeau Ponds. The decision commits up to 1.0 cfs of the USFS surface water right for use in the ponds and it also provides that:

"a minimum of 11.6 cfs of the Forest Service's surface water right will remain available for the historic use of that water at the DeChambeau Ranch. Continuing to exercise that historic use should result in little or no change to the conditions of the riparian, wildlife and fisheries habitat that have developed as a result of that historic use of water at Wilson Creek, Wilson Creek ditch, DeChambeau Marsh, or the county ponds." (R-PMBP-43.)

PMBP also presented testimony from Mr. Bellomo about waterfowl at various locations in the north end of the Mono Basin. Based on 20 years of hunting experience in the Mono Basin, Mr. Bellomo testified that several ponded areas near springs on DeChambeau Ranch were "exceptional" areas for waterfowl, and that the County Ponds also provided good waterfowl habitat when they were receiving tailwater from the DeChambeau Ranch in the past. (T 1704:10-1708:17.) PMBP also presented testimony from John Frederickson regarding heavy waterfowl use, during windy weather, by several hundred ducks on a small pond on Wilson Creek near his house. (T 1695:25-1696:6.)

The record shows that the DeChambeau Ponds, County Ponds, and Black Point areas once provided considerably more waterfowl habitat than they have in recent years and that they have the potential to provide good waterfowl habitat in the future. The record also shows that the deterioration of the waterfowl habitat in those areas in recent years has been due in part to changes in the water diversion and land management decisions of the landowners. With improved maintenance of the ditches serving the DeChambeau Ranch, it appears that resumption of historic water uses on the DeChambeau Ranch, as called for in the 1993 USFS decision notice for the DeChambeau Enhancement Project, could restore a significant amount of habitat for waterfowl and other wildlife. The strong local interest and availability of volunteer labor indicates that any necessary work on the ditch system and irrigation facilities serving DeChambeau Ranch can be done for a small fraction of the cost of the projects proposed in the waterfowl scientists' report for the DeChambeau Ponds and County Ponds area. (T 1721:6-1726:15.)

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.) Footnote42 The primary decision regarding the extent and type of waterfowl habitat work that may be undertaken on USFS land lies with the landowner.

As an alternative to waterfowl restoration at the DeChambeau/County Ponds/Black Point complex, the waterfowl scientists' report states that additional freshwater habitat could be developed through making shallow "scrapes" in lake-fringing wetland areas. However, the scientists' report concludes that:

". . . we do not recommend developing scrapes at this time, as we believe that concentrating low impact engineering project improvements at the DeChambeau/County Ponds/Black Point complex is a preferred option to mitigate losses of open freshwater habitats. These areas have already undergone changes in hydrography by humans and serve as a better landscape for mitigation. We further recommend that development of these scrapes be reconsidered if monitoring indicates other habitat development does not produce desired results." (R-DWP-20, Appendix I, p. 75.)

The waterfowl scientists' report also discusses the statutes and policies governing habitat manipulation on: (1) land in the Mono Lake Tufa State Reserve composed of state-owned land adjoining Mono Lake below elevation 6,417 feet; and (2) the 117,000 acres which comprise the Mono Basin National Scenic Area. Both categories of land are subject to statutory restrictions and policies limiting development and other activities. The report states that large scale, visually obtrusive engineering projects generally are not consistent with either agency's management policies and that, on land within the Tufa State Reserve, "prescribed burns may be the only important and acceptable management tool that can be used to manipulate vegetation density and composition in order to increase freshwater waterfowl habitat." (R-DWP-20, Appendix I pp. 57 and 58.)

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.

6.4.4 Controlled Burning

Based on positive responses by waterfowl and other birds to prescribed burning in other areas, the waterfowl scientists' report recommends development of a controlled burn program in order to maintain open water sites and increase the vigor of surrounding wetland vegetation. The report states that the specific methodology and time schedules for prescribed burns to achieve optimum vegetative response are not known. Therefore, the report recommends experimental prescribed burns at five year intervals to be followed by appropriate monitoring to assess the results. (R-DWP-20, Appendix I, pp. 60-71.)

The waterfowl habitat restoration plan submitted by Los Angeles proposes to burn 400 acres on an experimental basis. The initial burn would be followed by subsequent burns every five years on a rotational basis of approximately 1,000 to 1,200 acres of marsh and seasonal wet meadow habitat near Mono Lake. The plan estimates that the cost will be approximately $12,000 for the initial burn and approximately $36,000 for subsequent burns. The plan also recommends "spot burning" of large accumulations of old woody debris in abandoned creek channels. Large accumulations of woody debris are thought to retard regeneration of desirable riparian vegetation and reduce areas of open water and ponds in abandoned creek channels. (R-DWP-20, pp. 25-27.)

The plan submitted by Los Angeles expresses "very strong concerns" about fire escaping from the project areas to areas where other types of habitat restoration is already occurring and states that Los Angeles will strictly adhere to all precautions required by the California Department of Forestry. The plan states that Los Angeles intends to include prescribed burns in the Mono Basin in the vegetative management plan being developed for other lands it manages in the eastern Sierra Nevada. (R-DWP-20, pp. 25 and 26.)

The testimony at the hearing generally favored use of prescribed burning, although there was some evidence that the benefits may be short-term and that the costs may be higher than estimated in the Los Angeles plan. (e.g. T 1484:8-1484:18; T 1504:21-1505:12.) More information about the effects of prescribed burning in the Mono Basin can be developed from review of the Department of Parks and Recreation prescribed burning program which was described in the written testimony of Dr. James Barry and Ranger David Carle. (R-SLC/DPR-100 and R-SLC/DPR-200.)

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.

6.4.5 Control of Salt Cedar in Lake-Fringing Wetlands

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.

6.4.6 Monitoring Waterfowl Habitat Restoration and Waterfowl Population

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.

The waterfowl habitat restoration plan submitted by Los Angeles focuses on monitoring the condition of waterfowl habitat in the Mono Basin rather than on a projected number of waterfowl. The proposed monitoring plan proposes to collect and evaluate information relevant to the following conditions:

(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.

(4) Waterfowl population surveys and studies including fall aerial counts, aerial photography, ground counts a waterfowl "time activity budget study." (R-DWP-20, pp. 27-29.)

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.

Los Angeles' plan proposes that aerial photographs on a 1:6,000 scale be taken every five years to be used in monitoring changes in vegetation. (R-DWP-20, p. 28.) The Los Angeles plan also proposes that aerial photography be undertaken in conjunction with its fall waterfowl population surveys. In accordance with the recommendations of the waterfowl scientists' report, Los Angeles proposes that aerial photography be done as part of the waterfowl population surveys once every other year. (R-DWP-20, p. 29.) However, the waterfowl scientists' report also states that the importance of waterfowl population data may justify aerial counts on an annual basis. The report estimates the annual cost of aerial flights and associated work for photography of waterfowl habitat at $5,000 per year. (R-DWP-20, Appendix I, p. 107.)

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. Footnote43 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.

6.5 Conclusions Regarding Waterfowl Habitat Restoration Proposals

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. Footnote44 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 exot