'Access letter' heats up debate about frost water

Issue Date: April 28, 2010
Steve Adler

A government agency letter announcing plans to conduct unannounced, predawn inspections of farm properties marks the latest development in an ongoing controversy related to use of Russian River water to protect grapevines from frost.

Winegrape growers with vineyards along the river received the "access notification" letter, which warns farmers that the State Water Resources Control Board, National Marine Fisheries Service or state Department of Fish and Game may conduct the unannounced inspections unless the farmer sends formal notification in advance, denying permission.

The letter, signed by water board Deputy Director for Water Rights Victoria A. Whitney, states in part: "Because diversions for frost protection are weather-dependent and occur irregularly, mostly during early morning hours, initial contact prior to a site visit would be impracticable. Therefore, by this letter, you are being requested to provide reasonable access to your property. We will assume, unless informed otherwise, that you are allowing…access to your property."

Devon Jones, executive director of the Mendocino County Farm Bureau, said she has been hearing an overwhelming negative reaction from farmers, who express concern about the potential dangers of such unannounced inspections in the dead of night.

"In terms of the property access letter, participants in the Russian River Frost Program are concerned with the liability issues that could arise if regulatory agencies perform unannounced visits during the early morning hours when frost events typically can occur," Jones said. "We are recommending a cooperative approach with the regulatory agencies, but do not see the terms that the SWRCB put forth in the access letter as being a reasonable method for performing inspections."

Several growers have responded to the water board with letters denying access, while others have made use of a general access-denial letter drafted by the organizers of the Russian River Frost Program, including the Mendocino and Sonoma county Farm Bureaus.

Among other things, the letter points out that frost operations in the middle of the night are complex and can be unsafe.

"It is far too dangerous to have someone unfamiliar with my property show up unannounced in the middle of the night and invite themselves into my vineyard without creating a substantial risk of injury to themselves, employees, and property," the response letter states. "During frost protection, the ground is wet and a wide variety of tools and equipment are in use. Not only does anyone not familiar with our particular vineyard run the risk of tripping, falling, damaging equipment or vines, or interfering with our operation, but the unexpected presence of a stranger in the vineyard can be very disconcerting for myself or my employees. Under these circumstances, what you are asking for creates liability concerns I am unwilling to accept."

The response letter tells the water board that its request does not amount to "reasonable access," but adds, "However, if you would like to conduct an inspection, please contact my designated agent or myself to make arrangements."

Growers who would like assistance in submitting a denial letter to the SWRCB may contact the Farm Bureau offices in Mendocino and Sonoma counties.

Al White, viticulturalist at La Ribera Vineyard in Mendocino County, called the board's access proposal "an opportunity for a major mess-up."

"Somebody is going to get stuck, somebody is going to fall into the river. It is just not practical. It is a foolish way to approach it," White said.

"It is unfortunate that it has come to this kind of confrontational approach because if there is anything that should be clear, it is that the grower community has come together around this frost water issue and the management of water and its impact on the streams and the other uses of that water," he said.

The issue surfaced 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.

Since that time, growers in the region, along with the Farm Bureaus in the two counties and other North Coast organizations, have formed a coalition to develop a cooperative approach to protect endangered salmon and steelhead, while also allowing for use of Russian River water for springtime frost protection.

Their comprehensive plan to accomplish this goal was presented to the SWRCB several months ago and has been discussed at a number of public meetings, during which the group presented detailed reports and statistics supporting the proposed solution. The plan, which has already been implemented, included construction of numerous off-stream storage ponds for water to use during periods of frost protection, as well as improved water flow measurements and communications among growers and water-regulating officials to prevent sudden and dramatic drops in water levels in the Russian River and its tributaries.

But the plan has not been adopted by the water board and has been met with some skepticism by its staff. It has asked the board to adopt strict water-use regulations that many area farmers call "draconian."

A proposed regulation drafted by the water board staff was discussed at a series of three "working group" meetings put on by the board in February and March. Jones said the grower group has suggested revisions on a number of issues.

"It is hard to say if progress was made in changing the language in the draft regulation at this point," she said, adding that the board has predicted that the next draft of the regulation, plus supporting documents, could be released early next month.

Jack Rice, an attorney in the California Farm Bureau Natural Resources and Environmental Division, said the water board's proposed frost regulation would declare all water use in the Russian River watershed unreasonable unless certain conditions are met.

"Since this relies upon the SWRCB's authority to determine reasonable use and not its authority over waters within its jurisdiction, the board asserts that the regulation would apply to all water rights, including groundwater, riparian and pre-1914. This is a new approach with significant, statewide implications," Rice said.

He called the proposed regulation "overbroad, encompassing individual diversions that pose no threat to streamflows."

Frost danger on the North Coast generally runs from mid-March to mid-May. So far this year, there have been no severe frosts, plus an ample water supply.

"We are all very grateful for the rainfall that we have had this year and the fairly mild frost season. Lake Mendocino is nearing capacity and is a welcome sight compared to the last three years," Jones said. "We are still putting quite a bit of time and effort into the Russian River Frost Program. We are working on moving forward with tributary assessments and coordination among property owners as well as strengthening the language within the water management plan that we presented to the SWRCB."

(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.