The Victim Pays

Daniel Pritchett
401 East Yaney Street
Bishop, CA 93514

Dear Editor:

In environmental law there is a principle known as “the polluter pays.” This is the reason that DWP – instead of victims of its air pollution – is paying hundreds of millions of dollars to mitigate Owens Lake dust.

In the Inyo-LA Long Term Water Agreement (LTWA) DWP is turning “the polluter pays” into “the victim pays” – with Inyo County’s blessing. The case in point is the Big Pine re-greening project. DWP asserts that it (DWP) is not required to implement the re-greening project unless Inyo reimburses it in the form of allowing even more pumping from Big Pine. That is, DWP insists it is entitled to receive an exemption from the On/Off protocol to pump an Off-status well. Based on comments at the Standing Committee meeting of Nov. 4, Inyo Water Director Bob Harrington has embraced DWP’s assertion, with the support of County Counsel Randy Keller.

There is no language in the LTWA and related documents that states that DWP is entitled to receive an exemption and receive “replacement water” as a precondition for carrying out the re-greening project. Negotiators of the LTWA didn’t anticipate that DWP would so over-pump the area that the well identified to supply the project would remain in “Off” status continuously (except for a brief period in the El Nino year of 1998). DWP, however, insists that the original language – written for a non-existent management environment – is binding, and Inyo acquiesces. In this interpretation justice is denied, and the perpetrator is allowed to extort compensation from the victim.

Members of the Big Pine Paiute Tribe, environmentalists, and other Owens Valley citizens all voiced objections and proposed alternatives to DWP’s and Inyo’s LTWA interpretation at two recent Standing Committee meetings. No one in the public spoke in favor. Nevertheless, Supervisors Richard Cervantes and Linda Arcularius voted in favor of DWP’s extortion at both Standing Committee meetings.

When considering water issues, fear of DWP paralyzes county leadership. We hear “Sorry, there’s nothing we can do” and “we might lose” from county leaders instead of “we must find a way to hold DWP accountable.” The resolve to fight for principle Inyo displayed in asserting its claim to _ mile of an old route in Death Valley (Inyo Register Oct 19, 2010) is conspicuously absent when the principle pertains to DWP. County leaders consistently forget that calculations of the likelihood of success in challenging DWP must be balanced with calculations of the importance of the principle involved. They also forget that effective challenges may be made in the court of public opinion as well as the court of law.

The case is particularly painful because it reveals how little Inyo has learned from its mistakes. Elsewhere in the LTWA, Inyo explicitly agreed to pay half the costs of the Lower Owens River Project. This was an injustice of breathtaking proportions which continues to drain the county budget. The Big Pine re-greening project gave the county an opportunity to advance a reading of the LTWA which served the interests of both justice and the county. Inyo chose, instead, injustice and the interests of DWP. Fear of DWP prevails once again!

Daniel Pritchett

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