TABLE OF CONTENTS
Sonoma Wine Industry Freezes Out the Public
By David Keller,
Bay Area Director, FOER
Over the past 50 years, grapes for the burgeoning premium wine industry in Sonoma County have increasingly been planted in frost-prone areas. Historically-avoided bottom lands have been planted with thousands of acres of new vineyards. They are more likely to freeze earlier as cold air settles (sinks) into them than are traditionally favored slopes and upland vineyards. The advent of large-scale water use for frost-control spraying has helped make this practice of lowland planting profitable.
However, this comes with significant risks both to the crops and to the salmon and steelhead that inhabit, spawn and grow in the tributaries and streams of the Russian River basin.
During March, April and early May, significant frost periods can coincide with the emergence of grape buds and new leaves when they are most vulnerable. Pumps for vineyard overhead irrigation sprinklers are turned on at about 34 degrees as the temperature falls towards or below freezing, coating the buds with a layer of insulating ice. This helps protect against further drops in temperature and desiccation of tender plant growth. Spraying is not particularly effective below 26 degrees, when permanent damage to new vine growth and buds occurs.
Frost irrigation has been touted by the industry as more effective against frost damages over a wider temperature range than wind machines or Cold Air Drain¬Æ and far less air-polluting than smudge pots. But pumping uses huge amounts of water: around 50 gallons/minute/acre. Over the course of several hours of pumping during one night, a single 100-acre vineyard can use 4 to 6 acre-feet of water. Since freezing temperatures can run on for 2 to 14 nights over multiple watersheds during bud break, thousands of acre-feet of water can be used in a very short period of time. There are approximately 15,581 acres in Sonoma County and 16,400 acres in Mendocino County in 2010 that currently use water for frost protection, according to an industry attorney.
Where does "frost protection" water come from?
Water sprayed for frost protection is pumped from diversions from tributaries and the Russian River, ponds, and groundwater wells. To supply massive pumping quickly, growers are increasingly installing ponds, both on- and off-stream. The Russian River watershed has more unpermitted and illegal storage ponds than any other watershed in California. They all require permits from the State Water Resources Control Board (SWRCB), which issues and regulates permits to use or store surface water. Ponds or tanks filled from groundwater are not currently regulated by California water law.
However, these diversions often have a direct impact on surface flows, fish habitat, spawning grounds, rearing and passage. In 2009, Sonoma County Water Agency (SCWA) estimated that 30,000 acre-feet/year was being illegally diverted from the Russian River for all purposes. During frost-pumping periods alone, Russian River flows can decrease by 50’Äì80 cubic ft/second, suddenly dropping water levels and exposing the riverbed as multiple growers try to protect vines.
This strands and kills juvenile salmonids, dewaters redds, and prevents passage of spawning coho and steelhead. National Marine Fisheries Service (NMFS) documented fish kills in 2008 and 2009, considered illegal "takes" under the Endangered Species Act. SWRCB has recognized this as well.
Where's the law when you need them?
Who is going to step in to protect salmon and steelhead, and get effective controls on the wine grape industry members who don't agree or care?
At multiple SWRCB hearings, the industry, Sonoma County Farm Bureau, their lobbyists, lawyers, allies including the Association of California Water Agencies, and politicians all made a concerted effort to prevent any formal regulation of their frost-control practices. They minimized and denied any impacts, and insisted on voluntarily self-monitoring. They railed against NMFS and SWRCB threats of enforcement. Under pressure, SWRCB gave the industry repeated opportunities to demonstrate better stewardship, but to no avail.
In one long stretch of frost events in spring 2009, enough water was simultaneously diverted for frost protection that SCWA had to release extra water from Lake Mendocino to keep the legally required minimum flows in the Russian River. This was from the critical water supply pool needed to sustain summer municipal demands and instream flows of the river. Storage in Lake Mendocino had to be backfilled with diversions of water from the Eel River through the Potter Valley Project.
NMFS and SWRCB were compelled to take action. Strong protests came from fisheries advocates, environmental and watershed groups and downstream water rights holders. It became clear to the wine grape industry, SWRCB, NMFS, Sonoma County and SCWA that dewatering streams for frost control had to stop.
AB 2121 provided a regulatory framework finally adopted in 2010 by SWRCB. It's California's law for maintaining instream flows in Northern California coastal streams, requiring that enough water be left to provide for safe passage, survival and growth of listed fish, and to maintain habitat. SWRCB's policies include the use of continuous monitoring of flows and diversions, and installation of real-time stream flow gauges in the Russian River watershed.
SWRCB had to develop regional standards and regulations for irrigation practices, including frost-control pumping and water storage, instead of direct diversions from watercourses.
Freezing the public out of proposed frost-protection regulations
In an attempt to preempt or undercut political will for upcoming SWRCB regulations on frost-control irrigation, a number of grape growers and allies in April 2010 formed a private, mutual benefit corporation, the Russian River Water Conservation Council (RRWCC). They decided to secretly develop policies, regulations, permits and best management policies for adoption by Sonoma County, aided by former Supervisor Paul Kelley. Sonoma County would contract with RRWCC to run a grower oversight program, including best management practices, and to own stream gauge monitoring data privately.
All growers using frost control would require a County permit by March 2011, and become a dues-paying member of RRWCC. This was intended to ensure 100% participation and to amply fund RRWCC. There would be a so-called "independent science review panel" to review and report monitoring data, but no public agency or environmental interests were allowed on the panel. Mysteriously, RRWCC named Professor Matt Kondolf of UC Berkeley to chair this secretive panel. All data, monitoring sites and incidents of stream de-watering would be aggregated until after the frost season, then released by the panel to NMFS, CDFG, SWRCB and the public.
No real-time monitoring data would be released during the actual frost season. The County refused to ask if (nor require that) any permit applicants actually held legal water rights for diversion or storage. As a result, no enforcement of stream flow violations or take of protected species would come from information gathered by RRWCC. Sonoma County also claimed that the legislation, program and practices were exempt from the California Environmental Quality Act, requiring no environmental impact report.
No other stakeholders were invited into the process to develop the County's legislation. No downstream water rights holders, no other agricultural water users, no fisheries or environmental organizations, no tribes or other governments were even notified. Staff at SWRCB and CDFG were excluded. Several people from Trout Unlimited and NMFS were invited as the legislation progressed.
The legislation was written primarily by grape industry attorneys in Sacramento, including Jesse Barton, hired by Williams-Selyem Winery and its co-owner John Dyson, a wealthy New York politico. Other select industry insiders involved early on included Janet Pauli (Mendocino Inland Water and Power Comm., Potter Valley), Sean White (Mendocino County Russian River Flood District), Laurel Marcus (consultant), Jack Rice (California Farm Bureau), Bob Anderson (United Winegrowers Sonoma), Doug McIlroy (Rodney Strong Wine), Pete Opatz (Silverado Premium Properties), Keith Horn (Clos du Bois/Constellation Wines), Scott Johnson (Gallo), Peter Kiel (water rights attorney), Nick Frey (So.Co. Winegrape Commission), County Counsels Steve Shupe and Dave Hurst, County Ag Commissioner Cathy Neville, Pam Jeane (SCWA) and County Administrative Assistant Peter Rumble. The County put adoption of the entire scheme on a fast track for approval before Supervisors Kelley (also president of the Association of California Water Agencies or ACWA) and Kerns left office at the end of December 2010.
In late October, Williams-Selyem and Dyson released a study they commissioned from Sonoma State University economist Robert Eyler. With much industry fanfare, the study claimed that limiting frost-control irrigation would cost the grape industry over $2 billion per year and at least 8,000 jobs. Critics easily pointed out fundamental flaws in Eyler's study, which grossly overstated predicted losses. As SWRCB board spokesman William Rukeyser stated, "It's garbage in, garbage out."
Fortunately, someone tipped us off in early September about RRWCC's proposed ordinance. The County refused to reveal any information, even in response to a California Public Records Act request submitted by members of the Sonoma County Water Coalition in early October.
After criticism in the press, to Supervisors, SWRCB, NMFS, CDFG and others, the County allowed us to discuss the final draft ordinance at a meeting on October 14. However, no changes were permitted, since it was scheduled for Supervisors' approval on November 7.
SWRCB takes the driver's seat
On October 27, SWRCB sent out a Notice of Preparation for an EIR for their Russian River Frost-Protection Regulation in Mendocino and Sonoma Counties. This was the very kind of regulatory framework that we wanted, but astonishingly SWRCB staff claimed no knowledge of Sonoma County's frost ordinance, and Sonoma County staff claimed no knowledge of SWRCB's proposed regulations and EIR!
SWRCB noted that NMFS required them to take "immediate action to address concerns that water diversions for purposes of frost protection will cause significant salmonid mortality."
SWRCB also stated that it has "a duty to protect, where feasible, the State's public trust resources, including fisheries." The State Water Board also has the authority under article X, section 2 of the California Constitution and Water Code section 100 "to prevent the waste or unreasonable use, unreasonable method of use, or the unreasonable method of diversion of all waters of the State." ’Ä¶ "The premise underlying the proposed Regulation is that a diversion of water that is harmful to salmonids is an unreasonable use of water if the diversion can be managed to avoid the harm."
SWRCB put its foot down. Their proposal stated that unless diversions of surface water and of hydraulically connected groundwater for frost protection from March 15 through May 15 were in accordance with a SWRCB Water Demand Management Program, they would be prohibited. Instantaneous cumulative diversion rates cannot result in reductions of stream stage that is harmful to salmonids, and require stream and diversion monitoring and reporting. These regulations are being developed.
The growers involved in the Sonoma County sham regulations pressed forward, believing that they could preempt the state's wrath or more stringent controls if they enacted local legislation first.
The County's Permit Ordinance collapses
Fortunately, the efforts to craft an industry-cozy legislative and permitting package collapsed and failed. On October 19, 2010, Steve Edmundson, NMFS Southwest Regional Habitat Manager, wrote to the Board of Supervisors:
"’Ä¶it is evident that the goal of ordinance language agreeable to all interested parties is not being met. For our part, we cannot endorse a vineyard frost protection ordinance that lacks the means to establish a meaningful monitoring program and a transparent process.
"Essential components of transparency would include the tracking and verification of conservation actions, the full disclosure of operations (including the spatial extent, timing, frequency, and method of irrigation), complete accounting of water rights and actual diversions, as well as third-party handling and reporting of stream flow and diversion monitoring data.
"Groundwater use (including the location, number, depth, maximum rate, water quality, and log records for wells) is also important to disclose as it may affect streamflows in some situations. Finally, transparent decision processes associated with oversight activities would also provide assurances that decisions and actions are legitimate and appropriate.
"We strongly prefer to work constructively with the wine grape growing industry to identify and resolve impacts to salmonid habitats where they occur, but accurate monitoring, transparency, and accountability are essential foundations for such a relationship."
Nevertheless, the Supervisors unanimously approved the Vineyard Frost Control Ordinance on December 14, 2010. The permitting process details and management practices were to be brought back for final approval on February 8, 2011.
However, days before February 8, the negotiations and legislation collapsed in a major disagreement between growers and the County.
County Counsel told growers they wanted an indemnification of the County for any possible legal or financial costs, with RRWCC carrying insurance to cover the indemnification. The growers were furious. The growers refused to agree to transparency of data collection and release of real-time stream-flow monitoring data, and demanded anonymity in growers' reports on water used for frost protection.
With consensual hubris, the wine grape industry and the County had insisted on secrecy’Äîand reaped disdain.
Supervisors "were 'perplexed,' 'frustrated,' and 'blown away' by opposition from the growers" to the program's previously approved essential parts, according to the Press Democrat. "We negotiated in good faith, (the growers) agreed to it and the Board of Supervisors voted on it. This is kind of a breach of trust," said NMFS biologist David Hines. While some scorn was directed to Williams-Selyem's Dyson, who reportedly took a lead role in the turnabout, it was clear that the wine grape industry's rejection of the previously approved deal came with substantial support from many of its members, not just some lone cowboy.
As a result, the Supervisors agreed to require only a $64/year registration for frost-control irrigators. No monitoring, no stream gauges, no reporting is currently required.
Instead, the SWRCB's Russian River Frost Protection Regulation should take its proper place in the frontlines for the battle to prevent harm to Russian River salmonids. Proposed rules, including the framework of Water Demand Management Programs, were drafted and comments taken at a SWRCB workshop on April 6, 2011. See:
As expected, many grape growers argued that the regulations were unneeded, intrusive, that there was no continuing evidence of fish kills, and returning salmon numbers were up this year. Some claimed that SWRCB was overstepping by constraining the "reasonable and beneficial use" requirement for water rights and permit holders, and by extending controls to hydraulically connected groundwater. We are concerned that public access to real-time stream stage monitoring data is not required yet; that Lake Mendocino is seen as a source for more water to make up for overdrafting by frost-water irrigation; and that Sonoma County would not be an unbiased, effective overseer of the WDMP requirements.
The Draft EIR and final regulations will be released by May 15, 2011, with expected adoption by the end of this year.