CALISTOGA — The city of Calistoga was wrong to use $525,000 in money collected under a special flood control tax to defend against a water-related lawsuit, an oversight committee says in a new report.
The money was spent combating a lawsuit by Grant Reynolds, the San Diego man who has sued the city repeatedly over water use and its management of the Kimball Dam, particularly the issue of allowing more water to flow downstream to protect the spawning grounds of salmon and trout.
The city, with county approval, used the money to pay its lawyers, saying it was protecting its water rights.
"It would more truthfully be called ‘water wrongs protection,’ since the city was defending not a right but rather its knowing violation of permits and violation of a right of the people of California through injury to wildlife,” wrote members of an ad hoc subcommittee of the Measure A Financial Oversight Committee in their report on the history of the expenditure.
The money was collected under Measure A, a half-cent sales tax approved by Napa County voters in 1998 to fund an extensive flood control project through the city of Napa. The other areas of the county were guaranteed smaller chunks of the money for various projects.
The full Financial Oversight Committee was expected to discuss the report at a meeting Wednesday afternoon. It’s not clear what, if any, action the full committee could take beyond joining the criticism of the city’s actions.
The city has consistently defended its use of Measure A money. City Manager Richard Spitler said the conclusions reached by the subcommittee, and many other critics, relied on a misreading of regulatory requirements under the city’s water use licenses, some of which the city never actually used. He also said the report focused on a great deal of history at the dam that had little to do with the use of Measure A money.
The subcommittee’s strong conclusions were not unanimous. Member Peter Murphy dissented, saying he thought the spending was appropriate. Members Genji Schmeder and David Smith agreed in their criticism of the city.
The subcommittee was formed last year after the Napa County grand jury criticized the city for its use of Measure A money and the county for lax supervision of the city’s funding requests. The grand jury report was particularly harsh in its assessment of the Financial Oversight Committee itself, which it called the “sleeping watchdog” in the process of handing out the flood control money.
Calistoga has used the Measure A money in part for flood control improvements in the Grant Street area and, most prominently, to fund almost half of a new $6 million water storage tank on Mount Washington.
Reynolds sued unsuccessfully to block that use of Measure A money. The grand jury found that the use of the money was “inappropriate,” but placed most of the blame on county officials for failing to stop Calistoga from using the funding.
The subcommittee said it decided to focus exclusively on the legal spending and expressed no opinion on any of the other findings in the grand jury report.
The legal spending examined by the subcommittee came during one of Reynolds earlier lawsuits, alleging that the city had violated its “public trust” by failing to protect fish habitat.
That lawsuit was eventually dismissed, but not before the city agreed to release more water downstream. The city has denied that the agreement was in response to the lawsuit, saying it was instead a response to pressure from state regulators.
Relying heavily on Reynolds’ extensive legal file from the lawsuit, the subcommittee paints a harsh picture of the city’s conduct, saying there was at least a 30-year pattern of refusing to comply with demands by state regulators to monitor the amount of water flowing into and out of the reservoir and to release a sufficient amount to protect fish habitat.
Members said the records demonstrate that the city knew, or should have known, that its claim that it was operating in compliance with its water use licenses and other regulations was wrong.
"The invalidity of the City’s reasoning lies primarily in the fact that Kimball dam was operated out of compliance through most of its existence and demonstrably so in the years leading up to the Reynolds lawsuit,” members wrote. “The requirements of permits and law are not a valid defense when the license holder is continuously and obstinately violating them.”
The subcommittee agreed with the grand jury’s view that the county should have stepped in to stop Calistoga from using the Measure A money. They went a step further and said the county should have forced the city to comply with demands by regulators to protect fish habitat.
"Instead, county government took no side in a battle for the life of the upper Napa River,” they wrote, “and then rewarded the party in the wrong with funds raised for the Napa River flood project.”