Water Suit Sets New Law of the Land

John Waters Jr.
Editor, The Weekly Calistogan
May 06, 2010
Calistoga has a new claim to fame.

In addition to being known as a great place to soak in mineral water and healing mud, it will, from May 3 forward be known as the front line in a growing battle after environmentalists working to preserve the public trust scored a major victory.

There is a water war going on in California, and this ruling is completely going to change things.

“This is huge,” said Chris Malan, general manager of the Napa-based Living Rivers Council and head of the North Coast Streamflow Coalition Northern Region. “There is a water war going on in California, and this ruling is completely going to change things.”

Malan alleges there are 286 illegal water diversions, mostly from vineyard development, in the Napa River watershed.

Because so many people steal water from creeks — either they don’t get permits or they violate the conditions of their permits, which constitutes a trespass against the people of the state — many of the Napa River tributaries go dead during the summer from too many diversions, said Malan. Steelhead and numerous other aquatic animals die a slow death as pools become warm and lack oxygen and eventually dry up.

“People who steal water from creeks deprive the down stream ecosystem and people of their public trust right to fish, swim and recreate,” she said. “This is an issue that has been going on for years and the major media just doesn’t get it because it’s wineries, not just cities, that are the major takers.”

Public trust

The “public trust” doctrine is a principle that certain resources are preserved for public use, and that the government is required to maintain them for the public’s reasonable use.

Calistoga Deputy City Attorney Leah Castella on April 23 failed to convince Napa Superior Court Judge Ray Guadagni that anyone wishing to sue local agencies in allegations of violating the public trust must sue the state’s resource regulating agencies.

On Monday the court affirmed the tentative ruling it issued on April 23. The action means the City of Calistoga is headed for trial in early July in the ongoing case of Reynolds v. City of Calistoga.

Reynolds is attempting to sue the City of Calistoga directly for violation of the public trust for its alleged failure to comply with a Department of Fish and Game Code (section 5937) which requires the owner of any dam to allow sufficient water at all times to pass through a fishway, or, in the absence of a fishway, to allow sufficient water to pass over, around or through the dam to keep in good condition.

The plaintiff has alleged that the City, as owner of the Kimball dam, has violated its statutory duty. The judge has not stated the city is guilty of the allegations, just that it may be held directly accountable. The City must still defend against the allegations at trial in July.

Regardless of whether the city is guilty or not, Monday’s ruling becomes the law of the land, and environmental groups have already begun to take notice.

Taking notice

“This new Superior Court ruling on Monday says that anyone who diverts water must provide enough flow for downstream fish and if they don’t they can be sued by anyone,” said Malan.

Prior to the ruling the people were told by the State Water Resource Control Board (SWRCB) that is was the sole agency with jurisdiction to enforce water law. In truth, anyone wanting to sue anyone diverting had to file a complaint with the SWRCB and it would decide whether to sue.

In January 2010, the SWRCB beefed up its enforcement arm, hiring 23 new agents. Prior to that there was only one agent for the entire state.

“If the SWRCB didn’t pursue an illegal diversion then someone would have to sue the SWRCB to enforce illegal diversions,” Malan explained.

With the State Attorney General’s office filing a “friend of the court” brief in mid-April on behalf of plaintiff Grant Reynolds in his lawsuit against the City of Calistoga, illegal diverters are put on notice that anyone can sue anyone believed to be killing the flows in a stream.

“This makes it easier to go straight to the source of the illegal problem of killing a stream and takes the SWRCB out of the middle,” Malan said. “That is a huge change — allowing anyone to file against anyone else stealing riparian water from a stream and failing to provide bypass flows for fish and people downstream.”

Malan said environmental groups “all over northern California” are beginning to take notice of the Calistoga case.

Currently, Reynolds v. City of Calistoga is scheduled to go to trial in early July. It is also charged with breach of contract, a charge that is not covered by the city’s insurance, leaving city water rate payers on the hook for damages and legal fees.

Recently, city officials admitted that a portion of the city’s water enterprise funds will be used to pay for the litigation. So far, legal costs have exceeded $312,000, according to city records obtained through a Public Records Act Request.

Article from Weekly Calistogan