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WILLIAM A. RICHMOND (SBN: 44109)
ENVIRONMENTAL PROSECUTOR
P.O. Box 2053
Mammoth Lakes, CA 93546
(916) 849-7147
TIMOTHY W. KENDALL (SBN: 176338)
MONO COUNTY DISTRICT ATTORNEY
P.O. Box 617
Bridgeport, CA 93517
(760) 932-5558
Attorneys for Petitioners and Plaintiffs,
PEOPLE OF THE STATE OF CALIFORNIA
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MARSHALL RUDOLPH (SBN: 150073)
MONO COUNTY COUNSEL
P.O. Box 2415
Mammoth Lakes, CA 93546
(760) 924-1707
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Attorney for Petitioner and Plaintiff, COUNTY OF MONO
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KAMALA D. HARRIS
ATTORNEY GENERAL OF CALIFORNIA
Daniel L. Siegel
Supervising Deputy Attorney General
Marian E. Moe (SBN: 75327)
Deputy Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
(916) 322-5460
E-mail: Marian.Moe@doj.ca.gov
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Attorneys for Intervenor/Plaintiff,
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
LOS ANGELES CITY ATTORNEY MICHAEL N. FEUER (SBN 111529)
Department of Water and Power General Counsel Richard M. Brown (SBN 41277)
Deputy City Attorney Vaughn G. Minassian (SBN: 203574)
111 North Hope Street, Suite 340
Los Angeles, CA 90012
(213) 367-5297
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Attorneys for Respondent and Defendant
LOS ANGELES DEPARTMENT OF WATER AND POWER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF MONO
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Case No.: 10088
THE PEOPLE OF THE STATE OF
CALIFORNIA, and THE COUNTY OF
MONO,
Petitioners and Plaintiffs,
vs.
LOS ANGELES DEPARTMENT OF WATER
AND POWER, STATE WATER RESOURCES
CONTROL BOARD, and DOES 1 through 25,
inclusive,
STIPULATION FOR ENTRY OF FINAL
JUDGMENT AND PERMANENT
INJUNCTION; ORDER OF FINAL
JUDGMENT AND PERMANENT
INJUNCTION
Respondents and Defendants.
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Plaintiffs THE PEOPLE OF THE STATE OF CALIFORNIA, appearing by their
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attorney, Timothy W. Kendall, District Attorney of the County of Mono, and through William
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A. Richmond, Environmental Prosecutor, Plaintiff the COUNTY OF MONO, appearing by and
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through its attorney Marshall Rudolph, Mono County Counsel, Defendant LOS ANGELES
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DEPARTMENT OF WATER AND POWER (hereinafter referred to as "LADWP"), appearing
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by its attorney Michael N. Feuer, Los Angeles City Attorney, through Deputy City Attorney
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Vaughn G. Minassian, and the CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
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(hereinafter referred to as "CDFW"), appearing by the CALIFORNIA ATTORNEY GENERAL
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KAMALA HARRIS, through Deputy Attorney General Marian E. Moe, (collectively “The
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Parties”) HEREBY STATE:
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BACKGROUND
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A. LADWP operates hydroelectric facilities located within the Owens River Gorge in
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Mono and Inyo Counties for the purpose of generating electric power for the
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residents of the City of Los Angeles and portions of the County of Inyo; and
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B. LADWP's hydroelectric facilities are operated in conjunction with Long Valley Dam
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located at the northern end of the Owens Gorge, pursuant to license No. 10190 issued
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by the State Water Resources Control Board, which license authorizes LADWP to
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divert water from the Owens River at Long Valley Dam for hydroelectric power
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generation; and
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C. Water is stored behind Long Valley Dam in a reservoir commonly known as Crowley
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Lake for subsequent release through LADWP's Upper Gorge Power Plant, located
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approximately nine miles below Long Valley Dam; and
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D. After passage through the Upper Gorge Power Plant, the Owens River water is re-
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diverted through a penstock approximately 3.3 miles to the Middle Gorge Power
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Plant; and
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E. After passage through the Middle Gorge Power Plant, the Owens River water is re-
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diverted through a penstock approximately 7 miles to the Control Gorge Power Plant;
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and
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F. After passage through the Control Gorge Power Plant, the Owens River water is
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released into Pleasant Valley Reservoir for subsequent release to the Owens River
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for instream needs and delivery to water consumers in the City of Los Angeles; and
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G. Prior to March, 1991, the above-described diversions took all of the natural flow of
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the Owens River from the stretch between Long Valley Dam and Control Gorge
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Power Plant, except for seepage from Long Valley Dam and sources within that
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stretch; and
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H. On or about March 5, 1991, the penstock connecting LADWP's Middle Gorge and
Control Gorge Power Plants ruptured, causing water to spill from the penstock; and
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I.
On or about April 11, 1991, The Mono County District Attorney, on behalf of the
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People of the State of California, filed civil action No. 10088 in Mono County
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Superior Court against LADWP seeking to compel LADWP to restore a flow to the
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Owens River to comply with Fish and Game Code section 5937; and
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J. On or about May 3, 1991, the Mono County Counsel, on behalf of the County of
Mono, joined as a Plaintiff in said civil action No. 10088; and
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K. On June 16, 1991, the State Water Resources Control Board issued its Order
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#WR91-04 amending license No. 10190 to add the condition that there be full
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compliance with Fish and Game Code section 5937; and
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L. On or about June 20, 1994, an agreement ("1994 Agreement") was reached between
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the plaintiffs and LADWP ("Parties to the 1994 Agreement") for the purpose of
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"Establishing Interim Measures For Rewatering The Owens River Gorge;" and
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M. The California Department of Fish and Wildlife ("CDFW") has advised The Parties
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to the 1994 Agreement of flows of the Owens River in the Owens River Gorge
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necessary for compliance with Fish and Game Code section 5937; and
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N. The Parties to the 1994 Agreement and CDFW have agreed to those flows of the
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Owens River in the Owens River Gorge necessary for compliance with Fish and
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Game Code section 5937, and desire to have that agreement entered in the form of a
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permanent injunction as a judgment of the court (hereinafter “STIPULATION and
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ORDER”); and
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O. At or about the time of the construction of Control Gorge Power Plant a fish barrier
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which prevents the passage of fish was installed across the Owens River upstream
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from Control Gorge Power Plant in Inyo County; and
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P. The Parties to the 1994 Agreement and CDFW have reached agreement regarding
the proposed construction of a fishway by LADWP over that fish barrier; and
Q. The Parties to the 1994 Agreement and CDFW desire to have their agreement on
construction of a fishway entered as an enforceable judgment of this Court; and
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R. This Court has jurisdiction over the subject matter of the FIRST AMENDED
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PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE
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AND DECLARATORY RELIEF, CIVIL PENALTIES, AND DAMAGES
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(hereinafter "Complaint") and the COMPLAINT-IN-INTERVENTION FOR
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INJUNCTIVE AND DECLARATORY RELIEF, PETITION FOR WRIT OF
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MANDATE, filed by CDFW pursuant to the STIPULATION AND ORDER FOR
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INTERVENTION OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
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previously executed by The Parties; and
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S. The Defendant LADWP has been served with a copy of the Complaint, and hereby
acknowledges that this Court has personal jurisdiction over said Defendant; and
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T. By entering into this STIPULATION and ORDER, CDFW through its Director
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hereby appears and submits to the jurisdiction of this Court as though it were a
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named party Plaintiff in the Complaint;
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AGREEMENT
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To prohibit irreparable harm for which there is no adequate remedy at law, The Parties
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HEREBY STIPULATE and consent that a final judgment and permanent injunction be
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entered on request of any party with notice to the other parties, by which Defendant
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LADWP and its officers, agents, servants and employees, and each of them, shall be
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hereby and forthwith mandated, prohibited, required and ordered as follows:
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MANAGED AVERAGE BASE FLOW
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1. Subject to the provisions of Paragraph 13, LADWP SHALL CONTINUOUSLY
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RELEASE water into the Owens River Gorge at the Upper Gorge Power Plant (see
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Exhibit A attached hereto, incorporated herein by this reference), conforming in
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cubic feet per second (cfs) to one of the three schedules designated "Below Normal,"
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"Normal," and "Above Normal," in Schedule 1 attached hereto as Exhibit B and
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entitled "Base Flow Schedule." The flows conforming to this schedule are referred to
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herein as the “Managed Average Base Flow”. Temporary deviations of up to 25% of
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the Managed Average Base Flow are permissible so long as the average release in
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each 24-hour period from 12 a.m. midnight to 12 a.m. midnight conforms to the
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designated Base Flow Schedule.
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2. Subject to the maximum three-year suspension provisions of Paragraph 13, during
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the ten-year period commencing with the year that this STIPULATION and ORDER
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is entered by the Court and in each successive ten-year period LADWP shall cause
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the Managed Average Base Flow to conform with the "Below Normal" rate in six
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years, to conform with the "Normal" rate in three years, and to conform with the
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"Above Normal" rate in one year.
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Average Base Flow to provide and notify CDFW of its selection in writing at least
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two weeks before implementing the flow. LADWP shall not select a "Below Normal
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Base Flow" for more than three years in succession without the consent of CDFW,
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and CDFW shall not unreasonably withhold such consent.
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LADWP shall determine which Managed
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CHANNEL MAINTENANCE PEAK FLOWS
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3. Subject to the maximum three-year suspension provisions of Paragraph 13, in
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addition to the Managed Average Base Flows and similarly commencing with the
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year that this STIPULATION and ORDER is entered bythe Court, LADWP SHALL
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RELEASE at its Upper Gorge Power Plant flows conforming to Schedule 2 attached
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hereto as Exhibit C and entitled "Channel Maintenance Peak Flow." LADWP shall
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release Channel Maintenance Peak Flows thirteen times in each twenty-year period,
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and no more than once per year. Each Channel Maintenance Peak Flow shall occur
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over a 168-hour period as set forth in Schedule 2. The date and time of commencing
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each Channel Maintenance Peak Flow will be determined by LADWP, except that
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each Channel Maintenance Peak Flow will begin no earlier than February 1 and will
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conclude no later than September 30 of the same calendar year.
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4. LADWP shall notify CDFW in writing of its election to release a Channel
Maintenance Peak Flow at least two weeks before implementing the release.
RIPARIAN PEAK FLOWS
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5. Subject to the maximum three-year suspension provisions of Paragraph 13, in
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addition to the Managed Average Base Flows and Channel Maintenance Peak Flows,
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and similarly commencing with the year that this STIPULATION and ORDER is
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entered by the Court, LADWP SHALL RELEASE at its Upper Gorge Power Plant
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flows conforming to Schedule 3 attached hereto as Exhibit D and entitled "Riparian
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Peak Flow Schedule." This release is referred to herein as the Riparian Peak Flow.
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LADWP shall release this Riparian Peak Flow five times in each twenty-year period,
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and no more than once per year. Each Riparian Peak Flow shall occur over a 600-
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hour period as set forth in Schedule 3. The date and time of commencing each
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Riparian Peak Flow will be determined by LADWP except that each Riparian Peak
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Flow will begin at such a time that the highest flow (hereinafter "peak flow"), which
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occurs after hour eleven of the Riparian Peak Flow, shall occur between May 31 and
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June 15 of the same calendar year. LADWP expects to time the Riparian Peak
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Flows so that the highest flows occur during daylight hours in order to be better able
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to observe impacts on its facilities. Riparian Peak Flows shall not 1) occur in the
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same runoff year as a Channel Maintenance Peak Flow, 2) occur in consecutive
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years, and 3) occur more than five years apart unless there are five consecutive
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runoff years of above 90% runoff, in which case the next Riparian Peak Flow shall
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be released by LADWP during the next year with below 90% runoff. Runoff will be
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determined by the April – July Owens River forecast as published in the April
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edition of the California Department of Water Resources publication "Water
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Conditions in California" (Bulletin 120).
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6. LADWP shall advance or delay the beginning of the Schedule 3 flows by up to two
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weeks if so requested in writing by CDFW upon CDFW determining that the
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purpose of the Riparian Peak Flows would thereby be better served, except that the
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peak flow, which occurs after hour eleven, shall occur no later than June 15.
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7. LADWP SHALL NOTIFY CDFW in writing of its election to release a Riparian
Peak Flow at least six weeks prior to implementing the release.
GENERAL FLOW PROVISIONS
8. In any year, as defined in Paragraph 33, LADWP shall not release both a Channel
Maintenance Peak Flow and a Riparian Peak Flow.
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Schedule 1, “Base Flow Schedule”, attached hereto as Exhibit B, refers
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(1)
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numerically to the cubic feet per second (cfs) that shall be released during the period
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designated under the column “MONTH”.
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(2) Schedule 2, “Channel Maintenance Peak Flow”, attached hereto as Exhibit C,
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refers numerically to the cubic feet per second (cfs) that shall be released
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consecutively over a 168 hour period at intervals designated as “Time of Change”
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measured in hours from the time of commencing a release of 130 cfs to initiate a
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Channel Maintenance Peak Flow.
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(3) Schedule 3, “Riparian Peak Flow Schedule”, attached hereto as Exhibit D, refers
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numerically to the cubic feet per second (cfs) that shall be released consecutively
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over a 600 hour period at intervals designated as “Time of Change” measured in
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hours from the time of commencing a release of 130 cfs to initiate a Riparian Peak
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Flow.
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9. The highest Channel Maintenance Peak Flows and Riparian Peak Flows may be
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approximately 20 cfs less than reflected in the applicable Schedule when the capacity
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of the penstock is reduced due to a low elevation of Crowley Lake.
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10. LADWP SHALL MEASURE and record the flow rate of its release of Owens River
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Water into the Owens River Gorge in cubic feet per second (cfs) at the point or
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points of release into the Owens River Gorge and shall provide real-time access to
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that information to the CDFW. At the end of each year, as defined in Paragraph 33,
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LADWP shall provide to the CDFW and Mono County a written table of average
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daily flow at the release points.
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11. When Channel Maintenance Peak Flows or Riparian Peak Flows are in excess of
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four hundred (400) cfs, LADWP may limit the release at its Upper Gorge Power
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Plant to 400 cfs and release the remaining flow called for by the applicable schedule
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at its Middle Gorge Power Plant.
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12. There are three tunnels used by LADWP in conveying Owens River water in the
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Owens River Gorge. Tunnel 1 conveys water from Crowley Lake to a penstock,
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which then conveys the water to Upper Gorge Power Plant for hydroelectric
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generation. Tunnel 2 conveys water from Upper Gorge Power Plant to a penstock
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which then conveys water to Middle Gorge Power Plant. Tunnel 3 conveys water
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from Middle Gorge Power Plant to a penstock which then conveys the water to
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Control Gorge Power Plant.
Inspection and maintenance of these tunnels and
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associated components, as depicted in attached Exhibit E, that are required to safely
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convey and control flows may require that flows in the affected tunnels and Exhibit
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E components be shut off during such work. Inspections and maintenance resulting
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from lawful orders and requirements from regulatory agencies including the Division
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of Safety of Dams, California State Department of Water Resources, CDFW and
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other regulatory agencies may also require that flows in the tunnels and Exhibit E
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components be shut off during such work. Inspection and maintenance of tunnels and
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Exhibit E components shall be done only after written notice to Plaintiffs, including
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CDFW, and in the following manner and upon the conditions expressly stated below:
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12(a) Managed Average Base Flows may be altered during the period of tunnel
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repairs and inspections only according to a lake and streambed alteration agreement
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complying with Fish and Game Code section 1602, and at no time during tunnel
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repairs and inspections shall the flow released by LADWP below the Upper Gorge
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Tailbay be less than the flow in the Owens River Gorge above the Upper Gorge
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Power Plant.
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12(b) Inspections of Tunnels 1, 2, and 3 and associated Exhibit E components will
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be scheduled every 5 years or as needed if problems are indicated or as required by
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regulatory agencies. These inspections shall be scheduled for minimum impact to
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the Water System, the Power System, the Owens River Gorge, and the flows
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required by this STIPULATION and ORDER. Planned 5 year inspections shall be
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scheduled during “Below Normal” Managed Average Base Flows and during the
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low flow period of the year (between September and February) if possible.
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12(c)
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Managed Average Base Flows into the Owens River Gorge.
Inspections of Tunnels 2 or 3 shall not affect the scheduled release of
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12(d) Inspections of Tunnel 1 and associated Exhibit E components will require an
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outage of up to one week, during which time Managed Average Base Flows released
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to the Owens River Gorge below Upper Gorge Power Plant may be limited to
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uncontrolled sources such as seepage from Long Valley Dam and springs that flow
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in the Upper Gorge, with a volume of approximately 16 cfs. Every reasonable effort
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shall be made to supplement flow from the Upper Gorge. If possible, scheduled
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flows shall be ramped down over a 24 hour period in preparation for inspection of
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Tunnel 1.
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12(e)
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accommodated when Tunnel 1 is out.
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12(f) Channel Maintenance Peak Flows and Riparian Peak Flows up to 400 cfs can
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be accommodated with Tunnel 1 available and Tunnel 2 out.
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12(g) The maximum Channel Maintenance Peak Flows and Riparian Peak Flows
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can be accommodated if only Tunnel 3 is out.
Channel Maintenance Peak Flows and Riparian Peak Flows cannot be
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12(h)
Tunnel and associated Exhibit E component repairs shall be done on an as
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needed basis – usually as a result of damage found during tunnel inspections,
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abnormal power plant operation, or scheduled equipment replacement.
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possible they shall be scheduled for minimum impact to the Water System, the
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Power System,
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STIPULATION and ORDER.
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12(i) Repairs of Tunnels 2 and 3 shall not affect the scheduled release of Managed
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Average Base Flows into the Owens River Gorge.
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12(j) Repairs of Tunnel 1 and associated Exhibit E components will require an
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the Owens River Gorge, and the flows required by this
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outage for the duration of the repair.
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below Upper Gorge Power Plant may be limited to uncontrolled sources such as
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seepage from Long Valley Dam and springs that flow in the Upper Gorge, with a
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volume of approximately 16 cfs. Every reasonable effort shall be made to
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supplement flow from the Upper Gorge.
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ramped down over a 24 hour period in preparation for repairs of Tunnel 1.
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12(k) Emergency repairs must be done as soon as possible.
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12(l) Emergency Repairs in Tunnels 2 and 3 shall not affect the scheduled release of
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Managed Average Base Flows into the Owens River Gorge.
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12(m) Emergency Repairs of Tunnel 1 and associated Exhibit E components will
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require an outage for the duration of the repair. Managed Average Base Flows
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released to the Owens River Gorge below Upper Gorge Power Plant may be limited
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to uncontrolled sources such as seepage from Long Valley Dam and springs that
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flow in the Upper Gorge, with a volume of approximately 16 cfs. Every effort shall
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be made to supplement flow from the Upper Gorge. If possible, scheduled flows
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Flows released to the Owens River Gorge
If possible, scheduled flows shall be
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shall be ramped down over a 24 hour period in preparation for emergency repairs of
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Tunnel 1.
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12(n) There may be circumstances when an emergency tunnel repair is required
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while the level of Crowley Lake is very high, Long Valley Dam has sustained
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earthquake or other damage, or the City of Los Angeles has a critical need for water.
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In these circumstances, higher than scheduled flows may have to be released into the
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Owens River Gorge to keep Crowley Lake from reaching a dangerous level or to
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deliver water to Los Angeles.
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12(o) Diminished flows in the Owens River Gorge below the minimums required by
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this STIPULATION and ORDER under the schedule in place at the time, that occur
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as a consequence of maintenance and repair activity performed under this Paragraph
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12 and its subdivisions, shall be monitored, measured by duration and volume, and
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recorded on a daily basis by LADWP. LADWP shall give notice to Plaintiffs,
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including CDFW, of the fact of diminished flows at their onset. When undiminished
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scheduled flows have resumed, LADWP shall report to Plaintiffs, including CDFW,
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the daily and total volume of diminished flows attributable to the just completed
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maintenance and repair of tunnels and Exhibit E components. When the cumulative
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volume of unrestored diminished flows from these maintenance and repair activities
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reaches a total of 7,996 acre-feet, the diminished flows and resulting cumulative
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diminished volume shall be restored with what is estimated to be an equal amount
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(7,996 acre-feet) by the release of an “Above Normal” Base Flow that is in addition to
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the “Above Normal” Base Flows required by this STIPULATION and ORDER
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pursuant to Schedule 1 (Exhibit B), to be released at the first opportunity for what
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would otherwise be a “Normal Base Flow” pursuant to Schedule 1. This process shall
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be repeated with each unrestored 7,996 acre-feet increment of diminished flow.
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12(p) In no event shall Channel Maintenance Peak Flows provided in Schedule 2
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(Exhibit C) or Riparian Peak Flows provided in Schedule 3 (Exhibit D) be diminished
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by inspection and repairs performed under Paragraph 12. Any inspection and repairs
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under Paragraph 12 that occur during a Channel Maintenance Peak Flow or Riparian
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Peak Flow and that diminish flows below the applicable schedule, shall cause the
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ongoing flow regime to revert back to the underlying “Managed Average Base Flow”
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that was in place when the “Peak Flow” was initiated, and shall not serve as partial or
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complete satisfaction of Channel Maintenance Peak Flow or Riparian Peak Flow
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requirements under this STIPULATION and ORDER.
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13. Within the Owens River Gorge from the Upper Gorge Power Plant to the Control
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Gorge Power Plant, there are existing LADWP facilities that were not designed to
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withstand the flows required by this STIPULATION and ORDER. LADWP will be
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permitted necessary time not to exceed three years from the date this STIPULATION
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and ORDER is entered by the Court to upgrade these facilities and to overhaul
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components within the power plants that are necessary to convey and control the
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specified flows, during which time flows in the Owens River Gorge scheduled by this
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STIPULATION and ORDER may be suspended as necessary. While the scheduled
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flows are suspended pursuant to this Paragraph 13, every reasonable effort shall be
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made to implement Below Normal Base Flows in accordance with Schedule 1. In no
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event will flows released to the Owens River Gorge below Upper Gorge Power Plant
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be less than those attributable to uncontrolled sources such as seepage from Long
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Valley Dam and springs that flow in the Upper Gorge, with an anticipated volume of
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approximately 16 cfs, or be otherwise in violation of Paragraph 20 herein. At the
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conclusion of this work to upgrade and overhaul the subject existing LADWP
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facilities, or the expiration of three years from the date this STIPULATION and
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ORDER is entered by the Court, which ever first occurs, the scheduled flows shall be
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resumed and the successive ten-year and twenty-year time period cycles identified in
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Paragraphs 2 through 5 above shall commence. The suspension of scheduled flows
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pursuant to this Paragraph 13 is permitted only when subject LADWP facilities are
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found to be deficient to withstand the flows required by this STIPULATION and
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ORDER pursuant to Prudent Utility Practices and when prior written notice is given
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by LADWP to Plaintiffs, including CDFW. Any necessary suspension of scheduled
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flows shall be minimized to the greatest extent possible.
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14. If necessary, the Parties shall agree to adjust the time, duration, flow rates and
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volume of flows required by this STIPULATION and ORDER by written agreement
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entered and subscribed by The Parties and filed with this Court with service upon all
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other parties.
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15. CDFW believes that compliance with the Managed Average Base Flows, the
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Channel Maintenance Flows, and the Riparian Peak Flows imposed by this
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STIPULATION and ORDER will improve the quality and quantity of the riparian
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habitat along the Owens River Gorge, and will not result in a significant loss of
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wetlands in the Owens River Gorge.
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scientific analysis and regulatory authority in agreeing to these stipulated flows.
LADWP defers to CDFW’s expertise,
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COMPLIANCE WITH FISH AND GAME CODE SECTION 5937
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16. Fish and Game Code section 5937 states: "The owner of any dam shall allow
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sufficient water at all times to pass through a fishway, or in the absence of a fishway,
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allow sufficient water to pass over, around or through the dam, to keep in good
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condition any fish that may be planted or exist below the dam."
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established herein downstream from Upper Gorge Power Plant are accepted in
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satisfaction of this obligation to the extent permitted by law.
The flows
SCIENTIFIC STUDIES
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17. LADWP shall pay the sum of Four Hundred Ninety-Five Thousand and Thirty-Five
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Dollars ($495,035) to CDFW for monitoring and enforcing the Owens River flow
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provisions of this STIPULATION and ORDER, and for scientific studies of stream
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habitats and fish populations in the Owens River Gorge. The Parties hereto agree that
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this money will only be used for such monitoring, enforcement and scientific studies
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associated with the Owens River Gorge described above. Payment of this sum shall
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be made to the CDFW within ninety days after this STIPULATION and ORDER is
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entered by the Court.
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scientific studies shall be provided to LADWP by CDFW upon their receipt by
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CDFW and in the same manner they are received by CDFW. This STIPULATION
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and ORDER does not impose any obligation on CDFW to perform the activities
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encompassed by this Paragraph 17, nor to fund such activities after the Four Hundred
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Ninety-Five Thousand and Thirty-Five Dollars ($495,035) deposited by LADWP has
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been exhausted.
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entitled “Fish and Game Mitigation and Protection Expendable Funds Account”
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pursuant to Fish and Game Code section 13014(a)(2), to be created specifically for
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the Owens River Gorge and the expenditure of money pursuant to this
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STIPULATION and ORDER.
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All final written results and analyses resulting from the
CDFW shall deposit this payment into a Special Deposit Fund
FISH BARRIER
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18. LADWP SHALL INSTALL AND OPERATE a fishway substantially similar to that
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described in Exhibit F attached hereto, which will allow the passage of adult brown
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trout during base flow conditions, to override the barrier to brown trout migration
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posed by a structure now in place immediately upstream from Control Gorge Power
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Plant and identified as "Fish Barrier" in Exhibit A attached hereto. Such fishway
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shall be fully operational three years from the date that this STIPULATION and
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ORDER is entered by the Court. Construction, operation and maintenance of this
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fishway as described in Exhibit F shall be deemed to fulfill the requirements of Fish
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and Game Code section 5901 to the extent permitted by law.
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UPPER GORGE
11
19. The Owens River between Long Valley Dam and Upper Gorge Power Plant shall be
12
managed by LADWP and CDFW as a conservation area as described in the Owens
13
Basin Aquatic Species Recovery Plan (USFWS 1998) for as long as pure Owens tui
14
chub (Siphateles bicolor snyderi) are maintained, regardless of the future listing
15
status or recovery of the fish. CDFW and LADWP will cooperate in the active
16
management of the tui chub population to ensure their welfare. In the event that the
17
tui chub become extirpated from the Owens River between Long Valley Dam and
18
Upper Gorge Power Plant, CDFW and LADWP will meet and confer to determine
19
the future of the sanctuary as a conservation area.
20
20. LADWP SHALL PERMIT the existing flow from natural springs and seepage to
21
continue in the Owens River Gorge between Long Valley Dam and the Upper Gorge
22
Power Plant. LADWP SHALL NOT release additional flows, except for operational
23
needs, and in no event when the additional flow will compromise critical habitat for
24
tui chub, in the Owens River Gorge between Long Valley Dam and the Upper Gorge
25
16
1
Power Plant for as long as pure Owens tui chub (Siphateles bicolor snyderi) are
2
maintained, regardless of the future listing status or recovery of the fish.
3
“Operational needs”, as used in this Paragraph 20, are limited to circumstances when
4
it is necessary to open the slide gate at the dam in order to perform dam maintenance,
5
or as a consequence of dewatering wells used to prevent liquefaction of the dam
6
during an earthquake. Inspection and maintenance of tunnels, as described in
7
Paragraph 12 shall not be affected by this Paragraph 20.
8
TUI CHUB
9
21. LADWP SHALL make facilities on the White Mountain Research Center – Owens
10
Valley Station available to CDFW for native fish rescue and recovery as long as this
11
undertaking is consistent with the existing use of the area for research by the
12
University of California. CDFW shall have total control and responsibility for the
13
pond operations.
14
22. CDFW will notify and work cooperatively with LADWP regarding Owens tui chub
15
management on City of Los Angeles lands. CDFW agrees to obtain approval from
16
LADWP prior to releasing any listed fish on LADWP lands, and will not remove
17
listed fish from LADWP lands, if this action would jeopardize any agreements
18
LADWP may have regarding listed species and LADWP operations.
19
23. LADWP shall make reasonable efforts in cooperation with CDFW to identify an
20
additional location for reintroduction of tui chub within the Owens Valley on
21
LADWP-controlled land, in addition to the stretch of the Owens River between Long
22
Valley Dam and Upper Gorge Power Plant, and in addition to the White Mountain
23
Research Center – Owens Valley Station,to establish Owens tui chub habitat.
24
ACCESS
25
17
1
24. LADWP SHALL NOT PREVENT access by CDFW and Mono County personnel
2
and their agents to the Owens River Gorge for monitoring the status of fish
3
populations and environmental conditions, transporting native tui chub, monitoring
4
the condition of the Owens River Gorge, or monitoring the flow of the Owens River
5
in the Owens River Gorge. Except for emergency or law enforcement purposes,
6
Mono County contract personnel and their agents and CDFW contract personnel and
7
their agents shall provide LADWP with 24-hour notice prior to entering land owned
8
by the City of Los Angeles and managed by LADWP, when entering for purposes
9
related to this STIPULATION and ORDER.
10
All appropriate safety procedures
established at LADWP power-generating facilities shall be followed.
11
OTHER
12
25. This STIPULATION and ORDER fully resolves between the Plaintiffs and the
13
Defendant LADWP all matters alleged in the FIRST AMENDED PETITION FOR
14
WRIT
15
DECLARATORY RELIEF, CIVIL PENALTIES, AND DAMAGES filed herein on
16
May 3, 1991, the COMPLAINT-IN-INTERVENTION FOR INJUNCTIVE AND
17
DECLARATORY RELIEF, PETITION FOR WRIT OF MANDATE filed by
18
CDFW pursuant to the STIPULATION AND ORDER FOR INTERVENTION OF
19
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE previously executed by
20
The Parties, and all other matters expressly set forth within this STIPULATION and
21
ORDER.
22
Complaint, and the Complaint-in-Intervention mentioned above, nor expressly set
23
forth within this STIPULATION and ORDER is not intended to be resolved by this
24
STIPULATION and ORDER.
OF
MANDATE
AND
COMPLAINT
FOR
INJUNCTIVE
AND
Any matter that is not alleged in the First Amended Petition and
25
18
1
26. Neither LADWP nor CDFW shall be held liable or responsible for any failure to
2
comply with this STIPULATION and ORDER resulting from causes beyond its
3
control, including, but not limited to, changes in federal, state, and local laws,
4
statutes, regulations and ordinances, acts of God, acts of war, labor strikes, and acts
5
of government agencies other than LADWP.
6
27. The Parties agree that if any violations of any State or Federal natural resources
7
protection laws occur as an unavoidable result of LADWP’s compliance with
8
Paragraphs 1, 3, 5, 6, or 20 of this STIPULATION and ORDER, they shall not seek
9
imposition of criminal or civil penalties, or seek monetary or other financial
10
remuneration from LADWP for said violations, so long as LADWP is in compliance
11
with the provisions of this STIPULATION and ORDER and flows conform to the
12
appropriate schedule attached hereto as Exhibit B, C, OR D, to the extent possible to
13
avoid those violations of any State or Federal natural resources protection laws. The
14
Parties retain any rights they may have to address other violations of law.
15
28. LADWP presently holds license No. 10190 from the State Water Resources Control
16
Board authorizing the diversion of water for hydro-generation purposes. LADWP
17
shall be responsible for making any applications for modifications or obtaining any
18
modifications to that license made necessary as a result of complying with this
19
STIPULATION and ORDER.
20
applications and modifications insofar as they are consistent with this
21
STIPULATION and ORDER. In the event that the State Water Resources Control
22
Board in exercising its permitting and licensing authority imposes conditions which
23
significantly affect the terms of this STIPULATION and ORDER, all parties shall
24
have the option of moving the Court for an Order to set aside the Order of Final
Plaintiffs, including CDFW, shall support such
25
19
1
Judgment implementing this STIPULATION and ORDER and withdrawing from
2
this STIPULATION and ORDER. The Court, upon hearing of a noticed motion for
3
an Order to set aside The Order of Final Judgment implementing this
4
STIPULATION and ORDER, shall have the discretion to grant or deny the motion,
5
or to make such other orders modifying the STIPULATION and ORDER as The
6
Parties may request, upon a clear and convincing showing of a significant effect of
7
State Water Resources Control Board conditions.
8
29. All parties shall support this STIPULATION and ORDER from third party
9
intervention. Should third party intervention result in the imposition of significant
10
additional conditions to those in this STIPULATION and ORDER or to the activities
11
undertaken pursuant to this STIPULATION and ORDER, all parties shall have the
12
option of moving the Court for an Order to set aside the Order of Final Judgment
13
implementing this STIPULATION and ORDER and withdrawing from this
14
STIPULATION and ORDER. The Court, upon hearing of a noticed motion for an
15
Order to set aside the Order of Final Judgment, shall have the discretion to grant or
16
deny the motion, or to make such other orders modifying the STIPULATION and
17
ORDER as The Parties may request, upon a clear and convincing showing of
18
additional significant conditions as a result of third party intervention.
19
30. All notices required by this STIPULATION and ORDER shall be delivered to 1) the
20
Mono County District Attorney; 2) the Mono County Counsel; 3) the Bishop office
21
of LADWP addressed to Manager, Aqueduct Business Group or his designee; 4) the
22
Los Angeles City Attorney’s Office at LADWP; 5) the CDFW Regional Manager
23
responsible for the area encompassing the Owens River Gorge; 6) the CDFW's
24
Office of General Counsel; and 7)the Bishop office of CDFW. The notice shall be
25
20
1
delivered by the most expeditious mode available, including email, fax, or personal
2
delivery. In the event delivery is made by electronic means, a copy shall also be
3
delivered by U.S. mail.
4
31. Any party to this STIPULATION and ORDER may bring a motion to enforce any of
5
the terms of this STIPULATION and ORDER, and this Court shall retain jurisdiction
6
for the purpose of hearing and ruling on such motions and making and enforcing
7
such further orders as justice may require.
8
9
32. The Parties to this STIPULATION and ORDER retain their rights provided by Code
of Civil Procedure section 394.
10
33. As used in this STIPULATION and ORDER, the term "year" is a runoff year, which
11
begins April 1 and ends the following March 31, unless it is expressly defined as a
12
calendar year or otherwise herein.
13
34. In the event LADWP fails to comply with the time requirements in Paragraphs 2
14
through 5, LADWP shall pay to CDFW for deposit into the Special Deposit Fund
15
described in Paragraph 17, a penalty of five hundred dollars ($500 ) per day of delay
16
until such successive ten-year and twenty-year time period cycles identified in
17
Paragraphs 2 through 5 finally commence. In addition, all parties reserve all
18
remedies at law and in equity for any breach of this Stipulation and Order.
19
35. This document may be signed in counterparts.
20
21
It is so stipulated.
22
Dated:________________
23
24
By:____________________________
WILLIAM A. RICHMOND
ENVIRONMENTAL PROSECUTOR
25
21
Dated:________________
1
2
By:____________________________
TIMOTHY W. KENDALL
MONO COUNTY DISTRICT ATTORNEY
Attorneys for PETITIONER and PLAINTIFF
THE PEOPLE OF THE STATE OF CALIFORNIA
3
4
5
Dated:_________________
By:____________________________
MARSHALL RUDOLPH
MONO COUNTY COUNSEL
Attorney for PETITIONER and PLAINTIFF
THE COUNTY OF MONO
Dated: _________________
MICHAEL N. FEUER
LOS ANGELES CITY ATTORNEY
6
7
8
9
10
By:______________________________
VAUGHN G. MINASSIAN
DEPUTY CITY ATTORNEY
Attorney for DEFENDANT and RESPONDENT
LOS ANGELES DEPARTMENT OF WATER
AND POWER
11
12
13
14
15
Dated: _________________
By:___________________________
MARTIN L. ADAMS
Title: Senior Assistant General Manager
Water System
LOS ANGELES DEPARTMENT OF WATER
AND POWER
Dated: _________________
By:___________________________
RANDY HOWARD
Title: Senior Assistant General Manager
Power System
LOS ANGELES DEPARTMENT OF WATER
AND POWER
16
17
18
19
20
21
22
23
24
For DEFENDANT and RESPONDENT
LOS ANGELES DEPARTMENT OF WATER
AND POWER
25
22
1
2
Dated: _________________
3
KAMALA D. HARRIS
ATTORNEY GENERAL OF CALIFORNIA
By:________________________________
MARIAN E. MOE
DEPUTY ATTORNEY GENERAL
Attorney for INTERVENOR/PLAINTIFF
CALIFORNIA DEPARTMENT OF FISH AND
WILDLIFE
4
5
6
7
8
9
10
Dated: _________________
By:___________________________
CHARLTON H. BONHAM
Title: Director
CALIFORNIA DEPARTMENT OF FISH AND
WILDLIFE
11
12
For INTERVENOR/PLAINTIFF
CALIFORNIA DEPARTMENT OF FISH AND
WILDLIFE
13
14
15
16
17
18
19
20
21
22
23
24
25
23