Public Trust doctrine offers hope for Colorado’s rivers
By Bob Berwyn
I first discovered Mono Lake quite by accident in the early 1980s. I was driving from Colorado toward Mammoth Lakes and somehow I ended up cutting across the Eastern Sierra high desert on Highway 167 — I think I was probably looking for an obscure hot spring. Just before dawn, with a fat moon hanging over the Sierra Crest, I saw this great disk of a lake, shining silvery blue in the crepuscular light, looking completely out of place in the high, dry plains of the Great Basin.
I rubbed my eyes, thinking I was starting to hallucinate after 15 straight hours behind the wheel, then turned south on Highway 395 until I found a shady spot at Mono Lake County Park where I slept for a few hours. In the afternoon, I wandered down to the edge of the water and learned just a little bit about the magical tufa towers and the natural history of the lake, as well as the water diversions by the Los Angeles Department of Water and Power that threatened to collapse the ecosystem.
I didn’t linger too long during that trip. Mammoth was open for July 4th skiing and I was eager to get back to San Francisco to visit friends, but I knew I would be back. And a couple of years later, I ended up in Lee Vining to spend the summer as an intern with the Mono Lake Committee, giving tours of the tufa towers, monitoring fish in Lee Vining Creek and passing out brochures to tourists in the committee visitor center. On the side, I painted bungalows for long-time local Don Banta, owner of the Lee Vining Best Western.
The gig only lasted a few months, but the environmental lessons of the Mono Basin have stayed with me ever since and led, somewhat indirectly, to a career in environmental journalism. I’m sure my experience is not a unique story. The lake and its surrounding leave an indelible impression on anyone who spends an appreciable amount of time there.
So a few years ago, I signed up for the Mono Lake Committee’s electronic newsletter. It’s been 20 years and a lot has changed. Most importantly — and this is a huge message for the entire western water community — the California Supreme Court applied the Public Trust Doctrine to Mono Lake, saying that Los Angeles couldn’t simply destroy the lake’s ecological values.
The ruling was an “affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands.” and required the state to consider natural resources in water allocation decisions.
It was a sea change for California and Mono Lake in particular. All of a sudden, instead of just trying to minimize the impacts of water diversions, the Los Angeles Department of Water and Power was obligated to restore the ecoystems damaged by decades of unchecked diversions — a much more challenging and costly endeavor than giving them the protection they deserve in the first place.
So when I read recently in the Mono Lake Committee newsletter that LADWP hasn’t been living up to the terms of the far-reaching restoration agreement, it immediately made me wonder what will happen in the West when push comes to shove. California has just experienced two very dry years, including this past winter, which went down in the books as one of the driest on record.
Is LA trying to push the envelope to squeeze just a few more drops of water out of the Mono Basin, hoping it won’t get caught? It wouldn’t be unheard of. Here in Colorado, ski areas do the same thing when they’re diverting stream water for snowmaking. Knowing full well that they have to maintain certain minimum flows in some streams, they nevertheless push the envelope, diverting at a high rate until the stream gages drop to, or even below the required level.
So even though California is a little outside my regular water beat, I made a few calls and even got a response, albeit somewhat vague, from LADWP. From these initial interviews, it doesn’t appear there was any malice on the part of the city. The stream flow violations and other issues outlined by the Mono Lake Committee are probably due more to inattention. lack of oversight and outdated engineering. Read the story here.
But it made me realize how fortunate the people of California are with regard to water law. The supreme court’s public trust decision put a small but potent chink in the structure of western water law, showing that it’s possible to call on government to protect the inherent values of natural places without compensating water rights holders.
This should serve as a warning for other big utilities in Colorado (including Denver Water) and around the West, many which still practice old-school diversions to pointlessly water acres of bluegrass lawns in urban areas at a devastating expense to natural ecosystems elsewhere, for example the Fraser River and other Colorado River headwaters streams in Grand County.
In fact, the current discussion about increased diversions from that area makes for an interesting comparison to the Mono Lake situation. Under the public trust doctrine, the basic assumption would be that the inherent natural values in the Fraser and the Upper Colorado must be kept whole.
But under Colorado water law, the starting point is that Denver has the right to divert water at nearly any cost to the ecosystems, and is only obligated to minimize the impacts “to a reasonable degree.” This hasn’t worked out well for Colorado’s aquatic ecosystems the past century or so.
The facade of Colorado water law is brittle and unsustainable and will not withstand the impending changes resulting from global warming; better to address the challenges upfront with a progressive approach than to wait until the worst-case scenario is here.
Conservation advocates in Colorado have patiently been working within the strictures of state water law to avoid totally upsetting the apple cart, but it’s not so hard to imagine a not-so-distant future when the legal, political and environmental stars align in a constellation favorable to the public trust, either through a lawsuit similar to the Mono Lake case, or via a ballot initiative, as was tried just last year.
Either way is going to end up being costly to established water users, who are doing their customers a disservice by aligning themselves so closely with the The Lords of Yesterday. The longer we wait, the greater the cost. Pro-actively adopting our own version of the Public Trust Doctrine would not only preserve our environment, it would save a great deal of money in the long run.
For the final lesson of Mono Lake is that the curtailment of diversions from the Mono Basin didn’t destroy LA’s economy or cause water rationing. The city was able to replace the water from other sources and life went on pretty much as before — except in the Mono Basin, where trout once again thrive, and cottonwoods and willows are sprouting along streams that were dried up and dead for decades.