In the last three years, Napa Vision 2050 has been asked about Water Audit California and its general counsel, William McKinnon, so we went to the source and interviewed Mr. McKinnon, the attorney who has brought The California Public Trust doctrine into sharp focus in Napa County’s planning process.
At a time when our county is mandated by the state of California to make our groundwater subbasin sustainable by 2040, Mr. McKinnon has challenged many of the methods embedded in our planning and permitting processes that have ignored the connection between surface and groundwater. We will present the interview in two parts over the next two weeks.
About Mr. McKinnon and Water Audit California
William McKinnon is the General Counsel for Water Audit California, an NGO that is pursuing a mission of advocacy for the public trust. As discussed in the interview, Water Audit is guided by an advisory panel of subject matter experts. Over the last decade Water Audit has engaged in a science driven program to remediate watercourses by expanding the boundaries of the public trust doctrine. Its mission is not only to prevent further environmental degradation, but also to remediate existing injuries, frequently caused and continued by agencies of government. If the status quo resists Water Audit pursues litigation. Surprising no one, its operations are not dependent on public funds.
How did Water Audit California begin?
Water Audit California traces to a 2007 dispute in which fly-fisherman Grant Reynolds challenged the City of Calistoga’s water diversions under a little-used Fish and Game Code provision requiring enough flow to keep downstream fish in good condition. William McKinnon, a California attorney since 1987, took on the case in 2008.
The Calistoga case caught the attention of Karrigan Bork, whose scholarship on that same flow-bypass statute connected McKinnon to watershed scientists Peter Moyle and Ted Grantham, collaborators who have shaped Water Audit’s work ever since.
Why did you choose the work you have done in Napa County?
Our case in Calistoga gave us a good introduction to Napa Valley and to its environmental and watershed issues. From there, a variety of reasons pushed us further. Moyle introduced us to Amber Manfree, a fourth-generation Napa PhD student studying in Watershed Sciences at UC Davis. In addition to expanding our academic scope she added a depth of local knowledge to the group. The Napa River watershed’s location wholly within the political boundaries of Napa County simplified judicial venue. And, lastly, only one generation ago, the county was renowned for a salmonid population that is now near elimination.
The problem we initially observed was mismanagement, not environmental incapacity. Our hope was that by combining Napa’s star power with correcting county operations, we could extend the resulting environmental benefits beyond the county’s own limits.
About a year into the project, we met with Mike Hackett and Jim Wilson, founders of the Save Napa Valley Foundation (SNVF). Mike, Jim, and the SNVF board members have become our long-term supporters and two way communication link with the community. SNVF sponsored a series of projects. First was the 2020 Water Forum, which was attended by more than 150 people. Two months later, at the onset of the pandemic, Water Audit undertook a detailed status review called the Refugia Project, led by now Supervisor Manfree.
What are the biggest obstacles you have encountered?
Water Audit continues to encounter two big obstacles in Napa County. The first is the County’s persistent belief that the public trust “is not our problem.” Its position has evolved over time, but not so far as to have a single staff person tasked with watercourse health. Given the budget of the County, that goes to show they just don’t care. Close behind is the Napa wine industry’s instinctive resistance to disclosing its water use. The two topics are woven together.
In January 2020, David Morrison, then Director of Planning, Building, and Environmental Services, told the Board of Supervisors, while it was considering the small winery ordinance, that there was no evidence of drying watercourses due to well extractions. His statement was contradicted by years of reports from the county’s hydrologist, Luhdorff & Scalmanini Consulting Engineers, and acknowledged by WIIC (Watershed Information and Conservation Council).
Mr. Morrison then doubled down, stating that the county has no duty to maintain water in the streams. This statement contradicted the appellate ruling in Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, which explicitly extended public trust duties to agencies that authorize groundwater extraction, i.e., the county.
Water Audit hosted a public forum with a panel of our distinguished advisors. Though invited, Mr. Morrison instructed county employees not to attend. We then published a white paper, and the county suppressed and concealed it from the grand jury.
Many Napa watercourses have been deprived of the water required to maintain the environment. The most obvious example is the reach of the Napa River east of the City of St. Helena, which dries up each year, due to overextraction. Success built on taking from the public trust is not sustainable. Water Audit is just a dead canary in a coal mine. We aren’t the problem, but just a sign that there is a serious problem that needs fixing
Water Audit believes the industry’s concerns about incapability or incompatibility are overstated, and we know for certain that they are unproven. There is enough water in Napa County; arguably it is just in the wrong place or at the wrong time. Storage capacities at Kimball, Bell Canyon and Rector dams are being degraded by fire and development caused erosion, but nothing is being done.
It boggles my mind that the obvious solution, a county-wide water district, is not being considered. Perhaps tied to the proposed Conn Dam expansion, it might resolve all water issues for a century, and simultaneously allow salmon and other aquatic life to be sustained in your watercourses.
A core principle of Water Audit is that you manage what you measure. The inverse is also true. You can’t manage what you don’t measure.
By intent, the County has inadequate information to make a reasoned analysis of the impact of its conduct on its watercourses. Until it knows the effects of what its conduct is doing to public trust resources, the County cannot properly manage its trustee duties. All it can do is deny them.
Next week – part 2 of our conversation with William McKinnon