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Edited by Jerry Kirshenbaum
February 04, 1985
WILL THE FLOW FROM RUSH CREEK SWAMP THE DREADED DWP?
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February 04, 1985

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WILL THE FLOW FROM RUSH CREEK SWAMP THE DREADED DWP?

The Los Angeles Department of Water and Power has been an intimidating force since the early 1900s, when it seized control of the water in the Owens River in Inyo County, 240 miles north of L.A. in the eastern Sierra Nevada, so that big landowners could develop semiarid Southern California. In 1924, angry farmers in the Owens Valley, faced with ruin from loss of water, dynamited the department's aqueduct and redirected its flow back into the river. But that didn't stop the DWP, which after repairing the aqueduct resumed diverting water from the Owens River and, in the 1930s, took over more water in Inyo County and neighboring Mono County. By 1940 the DWP had turned Inyo and Mono counties into virtual satrapies whose streams and rivers were siphoned off to booming Southern California.

But now the DWP is facing an unaccustomed challenge to its swaggering authority. The challenge revolves around Rush Creek, a once legendary trout stream in the high Sierra between Grant Lake Reservoir and Mono Lake that had long been dry because of the diversion of its water to L.A. From 1981 to 1983, unusually snowy winters and wet summers resulted in lower Rush Creek springing to life with spillover released by the DWP from the reservoir. Last October, Dick Dahlgren, a real-estate broker and president of Mammoth Fly Rodders in nearby Mammoth Lakes, visited Rush Creek and was astonished to find it stuffed with brown, brook and rainbow trout. Using a dry fly, Dahlgren had a strike about every 90 seconds. The fish had obviously come with the reservoir's surplus flow. Biologists in the state Department of Fish and Game estimated that 30,000 to 50,000 trout inhabited the 10-mile-long stream, with more than 7,000 fish per mile in the upper stretches.

Dahlgren shared news of his discovery with Barrett W. McInerney, a vice-president of California Trout, a fishermen's group, who owns a summer cabin in the area. A couple of weeks later Dahlgren and McInerney learned that with the return of normal weather conditions, the DWP again coveted Rush Creek's water and was about to turn off the flow. The two mounted a campaign to save the creek. "We begged just about every elected official in the state to spare the fish until spring, when the snowpack could be measured," McInerney says. "They were interested only until they heard the initials DWP, and then the phone calls weren't returned." At first the DWP took the matter lightly. Dahlgren tells of a conversation he had with Duane L. Georgeson, DWP assistant general manager for water, after L.A. councilman John Ferraro asked that DWP keep water flowing into the creek. According to Dahlgren, Georgeson told him, "We answer to no one." Georgeson denies using those words, although he does say, "I did my best to explain to [Dahlgren] that we were going to discontinue the flow."

Eager to prevent that from happening, McInerney, a former L.A. County deputy district attorney, began reading the state Fish and Game Code, page by page, in the hope of finding a legal hook. "Lo and behold," he says, "I discovered a bill passed in 1937 that required a dam owner to release sufficient water over, around or through the dam to keep in good condition any fish that might exist below the dam. There was no cross reference in the main code to this section—you had to go through the whole code to find it."

Cal Trout quickly asked for a temporary restraining order in Mono County Superior Court to stop the DWP from diverting water from Rush Creek. On Nov. 20 Judge Donald Chapman granted the request and ordered a trout-saving minimum flow of 19 cubic feet per second, pending a full trial this spring.

More will be at stake in that trial than the fate of Rush Creek. McInerney says, "Rush Creek has become a battleground that could rewrite all the water agreements in California to the benefit of the fisheries. Nobody wants to turn Southern California back into a desert. All we want is to have the leverage to force the DWP to become accountable for its actions in the eastern Sierra." A suddenly alarmed DWP agrees that the lawsuit could have "cascading" effects, and its officials raise the specter of water shortages in Southern California if it loses.

But if the prospects are really so dire, why doesn't the DWP exercise its renowned clout and seek to have the California legislature change the law? One probable answer is that it doesn't want to further undermine its already shaky position in the pending Rush Creek court case. The awkward fact is that the DWP hasn't always bothered to demonstrate an overriding need for all the water it draws from afar—and it certainly hasn't always demonstrated a right to it. Until it does, the fishermen vow to keep pounding away at what McInerney calls "the arrogant, egotistical bastards" in the DWP. "We play the role of the mongoose," McInerney says. "The more they shake, the deeper we bite."
—ROBERT H. BOYLE

DEGRADING DECISION

Now some news about another embattled fish habitat. Colonel Fletcher H. Griffis, district engineer for the Army Corps of Engineers, said last week that he intended to issue a landfill permit for construction of Westway, a highway-real-estate development along the Hudson River on Manhattan's West Side. Westway has been held up for years, in part because of abundant evidence that it would have an adverse impact on an important winter habitat of striped bass, a species whose North Atlantic stock is in sharp decline (SCORECARD, July 12, 1982, et seq.). To judge by Griffis's decision, which is subject to review—and, one would hope, veto—by Army higher-ups and the Environmental Protection Agency, the official obfuscation that for years has dogged the project is continuing.

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