Blackrock 94: The road not taken

An arbitration panel recently sided with Inyo County in a preliminary ruling in the county’s dispute

with DWP over parcel Blackrock 94. This is good news, and the arbitrators’ decision is important.

However, it is premature to open the Champagne; the decision is better understood as a catastrophe

averted than a real step forward.

Though Inyo initiated the dispute, DWP had tried to hijack it by seeking to disallow decades of

wellfield monitoring data gathered by the Inyo County Water Department for the Technical Group.

Had DWP prevailed in this argument, enforcement of the Inyo-LA Long Term Water Agreement

(LTWA) would have become impossible because the most important data for determining attainment of

management goals would have been rendered inadmissible. This is the catastrophe averted.

Opening Champagne is premature because the arbitrators’ decision doesn’t address the real problem at

Blackrock: the exemption of Blackrock Hatchery pumps from the LTWA’s On/Off protocol. The

exemption allows continuous pumping, which is the reason the water table at Blackrock 94 never

recovers to the rooting zone. The lowered water table, in turn, is the reason the former groundwaterdependent

meadow is converting to a dusty, weedy, shrubland. I noted this in my 2007 letter (on behalf

of the Bristlecone Chapter of the California Native Plant Society) that led to the Blackrock disputes.

Inyo could have responded to my letter by invoking the “primary” LTWA goal of avoiding impacts and

seeking to modify management by limiting hatchery pumping. Had DWP objected, it would have had

to argue that its current practice of permanently decoupling groundwater from a groundwaterdependent

meadow creates no impacts — a tough case to make! A dispute would have focused on

management practice and an arbitration ruling favoring Inyo would have reduced the hatchery pumping

which causes the problem. Equally important, it would also have established that Inyo can enforce the

primary LTWA goal of impact avoidance.

Inyo didn’t invoke impact avoidance, but, instead, sought mitigation after the fact, a “secondary” LTWA

goal. Mitigation can be required only after the Technical Group establishes measurability of vegetation

change, attributability to management, and significance. DWP didn’t participate in Technical Group

deliberations in good faith, which led Inyo to initiate the current dispute. The dispute doesn’t challenge

management of hatchery pumping; it pertains to the process of determining whether mitigation is

necessary.

Arbitrators have, so far, ruled that a measurable decline in vegetation has occurred. They will now

consider whether the decline is significant and attributable to management. Their final decision will be

made sometime next year.

Assuming the arbitrators’ final decision favors Inyo, the Technical Group must then determine

mitigation. Given DWP’s lack of engagement, it wouldn’t be surprising if Inyo has to initiate yet

another dispute to compel DWP to agree to the necessary reduction in hatchery pumping.

DWP has never acknowledged that its LTWA obligation to avoid impacts can be enforced by Inyo. At

Blackrock the county had a golden opportunity to challenge DWP’s position and, if successful, benefit

the entire valley. By not challenging DWP’s position, Inyo implicitly accepted it. Victory in Inyo’s

current dispute will lead only to site-specific mitigation benefiting Blackrock 94. Considering the lost

opportunity to benefit the entire valley, I suggest victory in this limited dispute will not merit

Champagne, but a wine cooler, at most.

Daniel Pritchett, Bishop