Brown Trout Could Dry Up Some of L.A.’s Water Supply

In a decision that could threaten a significant portion of Los Angeles’ water supply, a Superior Court judge Friday ruled that the public’s right to fish for thousands of brown trout in a tiny tributary of Mono Lake must be weighed against the needs of the city for that water.

Superior Court Judge David Otis did not spell out exactly what the public right may be and ordered a trial on the matter. However, attorneys on both sides expect any trial to focus on how much water can be diverted by the Department of Water and Power from Lower Rush Creek to Los Angeles.

At stake is the diversion of about 14,000 acre-feet of water annually from Lower Rush Creek, a seven-mile-long tributary of Mono Lake on the eastern side of the Sierra, to Los Angeles through the DWP’s aqueduct system. The DWP says the water in question would serve a community of 70,000 people and would cost as much as $4.3 million to replace.

Otis rejected DWP arguments made during a May 3 hearing in Mono County Superior Court that public trust questions involving Lower Rush Creek were resolved decades ago, when the city was first granted rights to divert the tributary’s water to Los Angeles.

In ruling against the utility, Otis embraced an opinion by state Atty. Gen. John Van de Kamp’s office, which sided with fishermen and environmental interests, that public trusts do exist in the use of the waterway.

Van de Kamp’s office had urged Otis to balance the interests of Los Angeles with public interests by giving “special weight” to the fishing interests who had sought to protect the trout.

Otis granted the DWP a partial victory by rejecting environmentalists’ contentions that the annual diversion from the creek, first started in 1940, amounted to a project under the California Environmental Quality Act. The ruling means that the utility will not be required to prepare annual impact studies on the water diversions.

More Snow

The Rush Creek litigation was spawned after several fishermen in recent years noticed an abundance of trout in the meandering stream, which for years had been dry.

The fish apparently swam over a spillway from Grant Lake Reservoir Dam after DWP diverted excess water, beginning in June, 1982, into what had been for 30 years Rush Creek’s dry bed. The diversion apparently had carried hundreds of fish along. The trout have multiplied and now number about 30,000.

Since June, 1982, when the fish first began pouring over the spillway, more than 250,000 acre feet of water has entered the creek bed because of higher-than-normal snowfalls.

Last fall, two fishing groups--California Trout Inc. and the Mammoth Fly Rodders--filed suit when they learned that the DWP planned to shut off the Grant Lake spillway, leaving the fate of Lower Rush Creek and its fish to two small tributaries and evaporation.

The two fishing groups were initially victorious, obtaining temporary and preliminary injunctions forcing the DWP to maintain at least a 19-cubic-feet-per-second flow into the creek. That was considered the minimum amount needed to sustain the trout.

In his 16-page ruling filed Friday in Mono Superior Court in Bridgeport, Otis ordered the minimal flow to be continued pending trial.

Not Constant

While contending that the city needs the water being diverted to Lower Rush Creek, DWP officials have said the demand for the water is not a constant one and in recent months the diversion has not hurt the city’s supply.

The fishermen, represented by Van Nuys attorney Barrett McInerney, also argued that an obscure Fish and Game Code regulation adopted in 1937 requires dam operators to provide enough water downstream to maintain fish life. However, Otis deferred ruling on that issue.

In court arguments, the DWP has offered to return the trout to Grant Lake. At the same time, the department scoffed at all the fuss raised by the fishermen, calling their arguments “mock heroics.”

“Plaintiffs wish to preserve water for fish so they can fish for them or kill them in their own way,” DWP’s lawyers argued, noting that the department is charged with meeting the needs of people, not fish.