Court Upholds San Diego’s Draining of Lake Morena
The city of San Diego is free to drain as much water as it wants from Lake Morena, a reservoir in the county’s far southeastern reaches, without having to comply with environmental laws by first filing an impact report, a state appellate court ruled Monday.
To run its reservoirs, the city has to be free to transfer billions of gallons of water from the popular boating, camping and fishing reservoir, as it did for months beginning in late 1988, the 4th District Court of Appeal ruled.
Although that lengthy draining dramatically lowered the lake level and left wildlife habits menaced and businesses around the lake in jeopardy, any draining is an administrative function that does not require state review, a three-judge panel ruled unanimously.
Leaders of the Lake Morena-Campo Chamber of Commerce, which brought the court fight, said Monday they were stunned by the decision.
Jerry McKee, a real estate agent and chairman of the chamber’s Save the Lake committee, said the ruling was “disappointing and totally unexpected” because local residents felt confident that they had a legally and emotionally appealing case.
“I’m in awe at the moment,” McKee said. “You ask what it’s doing out here, I say, set the people aside, look at the terrain and the impact on the environment--it speaks for itself. When we get to July, August, September, I’d eat my hat if we don’t have a major fish kill here. And I’m wearing a big hat.”
McKee and Richard Leach, the chamber president, said they are not sure whether they will appeal, after already incurring more than $20,000 in legal fees. “We’ve got to sit down and talk about it,” Leach said. “But we’re not the type of people who give up that easily.”
Lake Morena, built in 1912, is part of a three-reservoir system constructed to provide the city of San Diego with water. It is designed to supply water downstream to Barrett Lake and to Otay Reservoir, where a filtration plant processes the water for human consumption.
With adequate water reserves for about 10 years before the city’s 1988 draining, the city did not transfer any water from Morena to Barrett.
During that time, fish thrived and the lake became one of the region’s principal stopovers for migratory birds. The lake also attracted plenty of people to its shores for boating, camping and fishing--about 300,000 in 1988, according to county figures.
That November, however, the city announced that it intended to move water from Morena to Barrett because Otay needed water, Barrett didn’t have enough and Morena has a high evaporation rate, meaning the city risked losing billions of gallons. No environmental impact report was filed.
Lake Morena residents sued to try to stop the drainage, contending it had to be regulated under the California Environmental Quality Act, a law that requires state and local agencies to complete environmental impact studies for projects that may alter the project area.
San Diego Superior Judge William C. Pate denied the residents’ request, saying the drainage was not a “project” under the state law.
Although residents appealed, the city transferred 2.8 billion gallons of water. A new shoreline about 30 feet below what was once the reservoir’s edge emerged. The nearby village boat ramp no longer reached the water.
In Monday’s opinion, the 4th District panel disagreed with Pate’s conclusion that the drainage was not a “project.” Nevertheless, Judge Ronald Domnitz said, the state law did not apply because it focused only on projects that involve decisions by public agencies that involve discretion.
The move to drain Lake Morena, Domnitz said, was not based on anyone’s personal opinion. Rather, it was a “ministerial activity,” a sort not addressed by the state law.
The only decision “to be made is the timing of the (drainage), not the method,” Domnitz said. There is “no other choice than to use the water system for the purpose for which it was designed,” he said.
Domnitz said the court understood that the drainage was likely to have a significant environmental impact on the reservoir. But the reservoir was designed to provide water, and the city could do “little or nothing” to mitigate any environmental damage, he said.
Since that was the case, Domnitz said, it would be “useless and wasteful” to require an impact report “every time (draining) of a reservoir is proposed for the ultimate purpose of supplying the community with water.”
Domnitz, a San Diego municipal judge, was specially assigned to hear the case. Judges Don R. Work and William L. Todd Jr. joined in the opinion.