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Inyo, County of v. Yorty

Citation: 6 ELR 20758
No. No. 3 Civ. 13886, 132 Cal. Rptr. 167/61 Cal. App. 3d 91, (Cal. Ct. App., 08/17/1976) interim pumping rate order vacated

As part of major litigation on the question of the City of Los Angeles' compliance with the California Environmental Quality Act, ELR 43010-14, prior to increasing its extraction of subsurface water from the Owens Valley Basin, this appeal is to determine the interim pumping rate for water extraction pending the court's ultimate determination as to the legal validity of the City's environmental impact report filed May 1976. Los Angeles was compelled to file a CEQA environmental impact report as a result of this court's decision in County of Inyo v. Yorty, 108 Cal. Rptr. 377, 3 ELR 20513 (June 5, 1973).

This appeal challenged the second interim pumping rate order, set at 178.5 cubic feet per second (cfs) (the first order had set a rate of 221.4 cfs) per 12-month cycle commencing each July 1. The court vacates the 178.5 cfs figure because it was based merely on averaging a three-year period without regard for equitable considerations. Instead, the court sets a rate of 149.56 cfs at which the City may withdraw water from the subsurface pool of the Owens Valley Groundwater Basin for successive 12-month cycles commencing each April 1. The order is effective September 1, 1976, and the 149.56 cfs rate also applies September 1, 1976 to March 31, 1977. In addition, the City may not decrease the quantities of water (from surface or subsurface sources) supplied to Owens Valley users below the levels customarily maintained since May 1975.

The court is faced with the issue of determining not only an equitably-conceived base for future determinations of the pumping rate but also the time cycle to which the rate is applied. On the first aspect, the court rejects the lower court's straight-line average measure of the years 1970-73 because the weather was unusually dry (causing greater drawdown demand) and the lower court failed to consider needs and disadvantages to both sides. Also, the court notes that the City's long-range plan anticipated a pumping rate of 147 cfs with normal precipitation. Thirdly, Inyo County's evidence of an "available precipitation pumping year" was near the 147 cfs level. Finally, the court averages the highest available annual precipitation (1970-71) and the lowest (1972-73) to balance actual experience and need to arrive at the 149.56 cfs figure.

On the issue of the time cycle, the court determines that the best measure is the "hydrological year" beginning April 1 because 80 percent of the year's precipitation falls between October 1 and April 1. Knowledge of this unpredictable information plus knowledge of other factors within human control could give better prediction of the appropriate pumping level.

The court assumes that "for the present the subsurface withdrawals averaging 149.56 cfs over a long period would . . . cause marked environmental changes," but finds that there is "no evidence that a short-term pumping rate of 149.56 cfs will cause environmental damage." The court anticipates that the limitation will be only short-term, but modifications would be available if future conditions justify them in extended litigation. Finally, in response to Inyo County's fears that the City would cut off Owens Valley users from other established supplies, the court directs the City not to decrease the water it supplies to Owens Valley below the levels customarily maintained since May 1975.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Order No. C-1086).

Counsel for Petitioner
L. H. Gibbons, District Attorney
Inyo County Court House
Independence CA 93526
(714) 878-2411

Antonio Rossmann
717 K St.
Sacramento CA 95814
(916) 441-3770

Special Counsel for Inyo County
Frederic P. Sutherland
Brent N. Rushforth
Center for Law in the Public Interest
10203 Santa Monica Blvd.
Los Angeles CA 90067
(213) 879-5588

Counsel for Respondents
Kenneth Downey
Department of Water and Power
111 N. Hope St.
P.O. Box 111
Los Angeles CA 90051
(213) 481-4211

Counsel for Amicus Curiae Sierra Club
Ralph Winter
Richard Gutting
Sierra Club Legal Defense Fund
311 California St.
San Francisco CA 94104
(415) 398-1411

Friedman, Acting P.J., joined by Regan & Paras, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]