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St. Helena faces legal threat over water claims

St. Helena faces legal threat over water claims

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A San Diego environmental advocate who mired the city of Calistoga in years of expensive litigation over water issues is now turning his attention to St. Helena.

Water Audit California, which lists Grant Reynolds as a director, filed a claim with the city of St. Helena on May 19 alleging that the city has failed to meet its bypass requirements to protect fish habitat downstream of Bell Canyon Reservoir, which the city operates under a state permit.

The claim threatens legal action unless the city agrees to the following demands within 50 days: comply with the bypass requirements identified in the claim, stop diverting water to the reservoir between April 16 and Nov. 14, post online the dam’s daily operational data and water flows, pledge to install flow monitoring equipment by November, and undertake a “stream and fish study” to determine bypass levels that would be adequate to protect fish downstream.

“(Water Audit) is looking for reservoirs that stand out as not being operated in accordance with the law,” Reynolds said Wednesday in a phone interview. “And St. Helena’s reservoir appears to be one of those.”

The St. Helena City Council will discuss the claim in closed session at 9 a.m. Thursday, June 16, at City Hall.

“The city is carefully evaluating the claim asserted by Water Audit California, and will respond appropriately in due course,” Mayor Alan Galbraith said Tuesday in a statement.

The claim alleges that the city failed to install monitoring equipment that it was directed to install nearly 40 years ago at Bell Canyon dam, which was built on Bell Creek in the late 1950s. According to the claim, the State Water Resources Control Board determined in 2001 that the city was violating its bypass requirements, and admonished the city in the early 2010s for exceeding its diversion limits at the dam.

“Although the claimant has made specific and repeated inquiry, the City has produced no documents that indicate that the City has any present intension to perform the necessary monitoring improvements, perform a stream and fish study, or reform its dam operations to the needs of the public trust and the 1989 Orders of the trustee agency,” the claim states.

The claim accuses the city of “routinely” violating its minimum bypass requirements, which dictate how much water must be diverted into the creek during each rainy season and prohibit any water from being diverted into the reservoir between April 16 and Nov. 14.

The claim points to stream surveys conducted by the Department of Fish and Wildlife showing that a species of rainbow trout that the state and federal governments consider “threatened” used to spawn downstream. But after the dam was built, the downstream population of that fish dwindled over the years, until a 1990 survey found none at all.

Reynolds is well-known in Calistoga, where city officials have accused him of entangling the city in prolonged, expensive and unfounded litigation. In February the Calistoga City Council lamented the roughly $1.5 million the city had spent defending itself from water-related litigation filed by Reynolds, his attorney William McKinnon of Grass Valley, and Debbie O’Gorman of Calistoga. Reynolds said one of those cases, involving O’Gorman’s water rights, is still pending in Napa Superior Court.

On Wednesday, Calistoga Mayor Chris Canning said he and Calistoga City Manager Dylan Feik are reaching out to their counterparts in St. Helena to “offer first our condolences and second our assistance.”

“What I can say from our experience is be prepared for a very long and very expensive process, and don’t expect it to be always based in logic or reason,” Canning said.

A 2011 profile in The Weekly Calistogan recounted Reynolds’ colorful life story, which he said included stints in surfboard manufacturing and international marijuana smuggling.

Reynolds’ financial mentor in the surfboard business was Frank Hickerson, whose son Matt lives in Calistoga. Matt Hickerson and Debbie O’Gorman engaged in a legal dispute with the city of Calistoga, alleging that a 1939 water agreement with O’Gorman’s family gave them the rights to the water at Calistoga’s Kimball Dam.

As a fly fisherman, Reynolds said he was moved by old photos of steelhead that used to be found downstream of the dam. He got involved in the couple’s lawsuit in 2009, and the allegations grew in scope, claiming that Calistoga had failed to bypass enough water into Kimball Creek toward spawning grounds for salmon and trout.

“My primary focus was to do something for the fish,” he said.

In a separate lawsuit, Reynolds accused Calistoga of improperly spending Measure A flood control funds on a water storage tank.

Calistoga eventually did agree to bypass more water into Kimball Creek, but claimed it was in response to pressure from the state, not Reynolds’ litigation. However, a judge ruled that there was a causal relationship between the city’s actions and Reynolds’ litigation, and ordered the city to pay $575,203 in legal fees to McKinnon, who had represented Reynolds in some of his cases. McKinnon had originally asked for up to $2.8 million.

The same judge later scolded McKinnon for trying to collect on the judgment last June by illegally filing a “writ of execution” on the city’s checking account at WestAmerica Bank at Calistoga, resulting in a fund transfer that left the city with only 1 cent in its account.

The funds were transferred back to the city, which ultimately paid McKinnon $555,767, the amount of the original judgment minus almost $20,000 the city had spent on legal fees related to the bank transfer.

Reynolds’ claim against St. Helena states that Water Audit will seek “reasonable attorney fees and costs” if litigation becomes necessary. Reynolds said McKinnon represents Water Audit.

According to the California secretary of state’s website, Water Audit California was incorporated in March, with a Sacramento address. Reynolds and the claim describe Water Audit as a “public benefit corporation.”

According to Reynolds, Water Audit has just gotten off the ground in the last few months, but has already made inquiries with “probably a couple hundred dam operators throughout the state.”

“What we want to do is protect the environment, and one of the ways to do that is to make people, including municipal corporations, obey the law as it pertains to the environment,” Reynolds said.

A protracted lawsuit would present another financial challenge for St. Helena, which is already struggling to pay for everyday city operations and has a long list of unfunded capital projects.

The 2016-2017 budget approved by the City Council on Tuesday sets aside $247,037 for litigation.

(Napa Valley Register editor Sean Scully contributed to this article.)

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