Recently, I heard the surprising and wonderful news that considerable progress has been made on the restoration of Owens Lake and the Lower Owens River. Some of you may remember that the plot of the movie Chinatown is based on Los Angeles officials' (and others') wheeling and dealing in the early 1900s to get the rights to divert water from Owens Valley, once a fertile farming area, about two hundred miles to the City of Los Angeles (without revealing their true intentions). Teachers of Water Law, like myself, undoubtedly have at least seen the story referenced in textbooks or perhaps read the account in Marc Reisner's Cadillac Desert. The short version is that the lower part of the Owens River and the entirety of Owens Lake, a shallow, saline lake that once supported "[d]ucks . . . by the square mile, millions of them," so that "the roar of their wings . . . could be heard . . . ten miles away . . . ," were completely dried up to support the water needs of Los Angeles, causing immense air quality problems due to the dust blowing out of the dry lake bed. Marc Reisner, Cadillac Desert 59 (1993) (quoting Beveridge R. Spear).
The problem fueled calls for area of origin protections in prior appropriation states, the idea being that there should be protections in place for the localities from which water is diverted and that the interests of such areas should at least be part of the calculus of deciding whether to allow a transfer out of the watershed or a new diversion. The air quality problems caused by the dust from the dry lake bed have been the subject of litigation for decades. See, e.g., County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977). But significant developments have occurred in the last few months. After a federal judge dismissed the City of Los Angeles Department of Water and Power's challenge to state air quality regulations in May, see City of Los Angeles v. Great Basin Unified Air Control District (Docket No. 1:12CV1683 AWI SAB, E.D. Cal., May 1, 2013), the Department of Water and Power negotiated a restoration plan with Audubon California, see "A California Lake Becomes a Stopover Spot Again," Audubon Magazine (Sept./Oct. 2013), and significant steps to implement the plan have already occurred according to this recent article in the Los Angeles Times. All of this goes to show that, even when we cause grave ecological harms, we sometimes get second chances.