[env-trinity] Weekly Calistogan 5-6-2010

Tue May 11 17:02:49 PDT 2010

Weekly Calistogan

http://www.weeklycalistogan.com/articles/2010/05/06/news/local/doc4be2287c17
f65174301408.txt

Water suit sets new law of the land

By John Waters Jr.

Editor

Thursday, 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.

"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 downstream 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.

Byron Leydecker, JcT

Chair, Friends of Trinity River

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 land/fax (call first to fax)

415 519 4810 mobile

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(secondary)

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