Water board vote on frost protection troubles farmers

Issue Date: January 27, 2010
Steve Adler

Despite extensive efforts by winegrape growers in Mendocino and Sonoma counties to develop a cooperative approach to protecting endangered salmon and steelhead while also allowing for use of Russian River water for springtime frost protection, the State Water Resources Control Board instructed its staff last week to move forward in developing regulations that would go into effect with the 2011 frost season.

Water board Chairman Charlie Hoppin instructed board Deputy Director Vicky Whitney to include a "working group" of farmers, environmentalists and others to help in developing rules that would regulate use of water for frost protection.

Hoppin commended the farmers and their supporters for their efforts in developing their own frost protection proposal and emphasized to Whitney that any regulation developed by the water board must contain flexibility to take into account the work that has been done by the farmers. A coalition of two grower groups has been formed to address the problem: the Upper Russian River Stewardship Alliance, known as URSA, and the Middle Russian River Stewardship Alliance, or MRSA.

The issue sprang to life following a series of unusually frigid nights in the spring of 2008, when grape growers in the two counties used their irrigation systems to protect their vines from frost. Water diversions from the Russian River and its tributaries resulted in lowered flows that state biologists blamed for stranding fish.

During the Sacramento workshop, several members of URSA and MRSA expressed their concern that the water board staff ignored their efforts in creating its preliminary proposal.

"A lot of people have worked very hard over the past year to come up with solutions, including local farmers and Farm Bureau staff at both the county and state levels," said Danny Merkley, California Farm Bureau Federation director of water resources. "I think that a lot of the frustration could have been avoided had there been more communication from the board prior to release of the draft explaining that the board would have the flexibility to incorporate much of the work accomplished by the farmers and other stakeholders."

Mendocino County Farm Bureau Executive Director Devon Jones said that members of the growers' group "walked away from that meeting very disappointed" because they realized that the staff proposal wasn't the best starting point from which to go forward.

A new U.S. Geological Survey gauge has been installed at Talmage on the Russian River to help monitor water flow as part of an effort to provide frost protection to winegrape growers while at the same time protecting endangered fish.

"By the end of the workshop, it was obvious that the board members wanted to see this draft go forward. We had hoped to see language altered before starting the process because once the process gets going, it becomes much more difficult to make changes," Jones said. "It was frustrating because the water board staff has a counterargument to everything, whether their argument was rational or not. And it seems like a lot of what's in this proposal is based on emotion, rather than fact, and that is why our science-based proposal should have been put forward."

Water rights attorney Peter Kiel, speaking on behalf of the grower groups, said that the water board's proposal contains a number of flaws.

"The regulation reads as if frost diverters are guilty of harming the resource until proven innocent. Unfortunately, the draft regulation does not have a clear process for demonstrating compliance. There really are no standards, and it is very troubling that they are not in this proposal," Kiel said. "If the board adopts regulations, the regulations should complement, not conflict with the frost protection program that we have developed. We don't see any clear recognition of the frost program in this draft regulation. Our proposal is more clearly delineated."

Those views were echoed by Laurel Marcus of the California Land Stewardship Institute.

"The proposed frost regulation doesn't really come up to the standard. It is based more on assumptions rather than fact finding and data analysis. I really think it is important that you carry on the same high standard that you are using with your water quality program for this type of water right program," she told the board.

In the end, after hearing from concerned farmers on the one side and concerned environmentalists on the other, the water board authorized Whitney to proceed with development of the draft regulation.

"We have a number of folks who believe very sincerely that we have gone too far in this proposed rulemaking process, that the fish take was an anomaly, that it was an occurrence that happened once in 30 years, that the problem has been taken care of and it won't happen again. And then you go to the other extreme, some of the federal fisheries folks and Fish and Game folks feel that this is a problem that not only has the potential to occur but has actually occurred on many more instances than they have been able to document. My assumption is that somewhere in the middle is the correct line," Hoppin said.

"It looks to me like we are probably close to having some agreement on something, with some minor adjustment on the details. That's not to say that people are going to get everything they want," he said. "But I think there have been some reasonable requests for fine-tuning and a degree of discomfort that these concerns haven't been adequately addressed (in the preliminary draft proposal)."

Whitney said there is not enough time to have rules in place for this year's frost season, which runs from mid-March through May, when the young shoots of grapevines are most vulnerable to freezing temperatures.

"We intend to release our draft proposal very soon, by the end of this month at the latest. I think we should continue to meet and work out the details, but I wouldn't want it to delay the other process because if we don't start now, it will be another year, not only in 2010, but we won't have something in place in 2011 either," Whitney said.

In the interim, Whitney said she is working with other agencies to increase enforcement efforts on the Russian River and its tributaries during this frost season. Funding has been provided for the water board to hire 25 additional investigators, 12 of whom will be assigned to the Russian River region.

"Because it is obvious that any regulations adopted by the board will not take effect until after the 2010 frost season, I intend to work with the other regulatory agencies on an enforcement program to deter those who may divert water in such a manner as to cause harm to the fisheries," Whitney said. "I've met with NOAA Fisheries, the Department of Fish and Game and the local district attorney's office to begin to develop such an enforcement program."

(Steve Adler is associate editor of Ag Alert. He may be contacted at sadler@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.