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North Bay Business Journal

Monday, July 28, 2014, 6:00 am

North Coast farmers face new state, federal water rules

New regional rules could impact 141,400 acres of vineyard properties

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    Whether water is gushing in North Coast waterways or not, farmers in the region are facing proposed state and federal rules aimed at ensuring that there’s enough water above and below ground during dry spells such as the current drought and that runoff when the rains return doesn’t harm protected species.

    A rulemaking effort a decade and a half in the making is San Francisco Bay Regional Water Quality Board’s permitting system for controlling erosion from vineyards into Napa River and Sonoma Creek watersheds. And after two decades of discussion, debate, enforcement actions and stop-and-start regulation efforts on how Russian River watershed water can be used, particularly for protecting vines and other crops on frosty nights, legal challenges to the State Resources Control Board’s North Coast Instream Flow Policy are working through appeals courts.

    In a related matter at the regional level, there are drought water-use curtailment orders for use of water from upper Russian River because of the low levels of Mendocino and Sonoma lakes. Also gaining urgency during the drought is legislation in Sacramento to manage and develop groundwater resources.

    At the federal level, Environmental Protection Agency and U.S. Army Corps of Engineers this past spring proposed definitions for the “waters of the United States” clause, or “WOTUS,” that specifies Clean Water Act jurisdiction. While farming remains exempt from certain Clean Water Act permits, it could now need other permits for routine operations, according to trade groups.

    On the Sonoma Creek and Napa River vineyard erosion rules effort, San Francisco Bay water board staff are preparing environmental-impact documents on general wastewater discharge requirements, or WDRs, for vineyards, after scrapping a vineyard conditional waiver effort early last year.

    Board staff released a 79-page initial study of proposed general WDRs for vineyard operations on July 7 and held a scoping meeting in Napa on July 23. The goal is garner new comments to combine with input from the waiver effort into a draft environmental impact report on the proposed rules. The target is to release the draft in late fall and hold public hearings early next year. The forthcoming rules would encompass an estimated 141,400 acres of vineyard properties with 69,000 planted acres of vines in the two watersheds, according to the study.

    Though the final rules haven’t been released, farming groups see indications in the direction of them from the study. But Naomi Feger, chief of the regional board’s planning division, told the Business Journal in June that vineyard WDRs “will not be in conflict” with existing erosion-control regulations overseen by the counties of Napa and Sonoma.

    Jim Lincoln

    Of concern in the initial study for Jim Lincoln, a southern Napa Valley manager for Beckstoffer Vineayrds and chairman of Napa County Farm Bureau’s National Resources Committee, are the size of vineyard properties needing to submit plans for erosion management, duplication of documentation efforts and erosion-control upgrades of of roads on the property. He’s been following this rule-making effort since discussions started in 1999 of regulations of total maximum daily load, or TMDLs, of sediment into the watersheds, limits that the board adopted six years ago.

    “The study talks about this applying to any vineyard property larger than five acres, and that’s a lot of people,” he said. “We looked at the number of growers affected when they were talking about the rules covering properties 40 acres and up, and it was in the hundreds of growers.”

    That the rule applies to an entire property with a vineyard and not just the planted acreage is troubling, he said, noting that vines may cover a small fraction of a large ranch. But a key point of contention is that roads on the whole property — a key potential source of runoff sediment — may need costly engineering and construction work.

    Another sore point is the study’s discussion of documenting in farm plans the erosion-control best-management practices used, such as planting of “cover crops” among and around the vines as well as other BMPs already required under county regulations and third-party certification programs such as Napa Green/Fish-Friendly Farming, according to Mr. Lincoln.

    “Our frustration is that we’re doing all this stuff and engaged in the process, but the study still reflects a lot of duplication in rules and regulations,” he said. “The water board says it is easy to document, but we say it is another thing that doesn’t need doing.”

    The EPA and Corps have said the changes proposed to the WOTUS definition in the 1972 Clean Water Act are meant to clarify where their jurisdiction starts and stops, following Supreme Court rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 that “isolated” water is excluded and Rapanos v. United States in 2006 that called for case-by-case determinations of “nexus” with WOTUS. The comment period on the rule ended July 21, and the goal for completing the rulemaking is next April.

    After news reports from farmers worried about ditches and low spots on their property coming under more federal scrutiny, the EPA and Corps in late March released an “interpretive rule” in late March that stressed that farming operations allowed by the National Resource Conservation Service standards for ecologically sensitive land are exempted from needing a Clean Water Action Section 404 permit for filling or dredging wetlands.

    Kari Fisher

    While that rule applies to Section 404 permits for ag, it doesn’t seem to apply to low areas on ag land adjacent to a tributary — runoff flows toward it — that is deemed WOTUS, triggering the need for a Section 402 National Pollution Discharge Elimination System permit, according to Kari Fisher, associate counsel for California Farm Bureau Federation.

    “Our member farmers and ranchers potentially need costly permits,” she said. “Jurisdictional surveys of land are time-consuming and cost money, during which time they can’t use their fields or put in crops.”

    Because the interpretive rule also states that ag property owners must comply with NRCS conservation standards, which call for not harming listed species, consultations with state and federal fish and wildlife regulators may be needed, Ms. Fisher said.

    Fence mending and installation is one of the 56 farming activities in protected areas that can trigger such a consultation and one most likely to be considered for 402 permits under the proposed WOTUS definition, she said.

    Critical habitat for the California tiger salamander on the Santa Rosa Plan could provide such a trigger, she added.

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