Freezing Out Fish in Whine Country
By Lloyd G. Carter
Do not expect the State Water Resources Control Board’s recently adopted frost prevention self-monitoring program to halt the Russian River fishery’s slow slide toward extinction. If anything, the new regulations may hasten extinction, given the wine growing industry’s practice of virtually drying up the river on occasion. Almost everybody is mad at the Water Board’s bumbling effort to shift its regulatory responsibility to protect and monitor the fishery onto the wine industry, which is the very industry causing the problem. Fishing interests and environmentalists contend precious little time is left to solve a problem the water board has ignored for decades. Growers, on the other hand, claim they are voluntarily solving the problem and that the new water board regulations are onerous, expensive and unnecessary. One thing is certain. Fish and wine may go together at the supper table but wines grown in Sonoma and Mendocino counties come at a terrible environmental price for Coho and Chinook salmon and steelhead trout, which once filled the Russian River and its tributaries by the tens of thousands.
Further complicating matters, vineyard acreage in the watershed increased 30 to 40 percent from 1999 to 2008, placing further demands on river water supplies. And Water Board staffers concede there may be as many as 1,700 entities drawing water from the Russian River system without proper, or any, water rights. In other words, widespread theft of water is a regular occurrence in a watershed that already seems oversubscribed. The fish problem, however, is that Sonoma and Mendocino vineyard owners, in order to protect their budding vines during Spring frosts, simultaneously pump so much water from streams in the million-acre Russian River watershed that fish, mostly young, are left stranded in dewatered stretches with inadequate water to sustain them. The water diverted is showered over the tender buds with big sprinkler systems. Following two documented fish strandings of endangered or threatened species in 2008 (and the reasonable inference that more strandings may be occurring during each frost event) the Water Board, as well as federal fish agencies and the wine industry itself, began looking for solutions.
At a November 2009 workshop on the subject, federal scientists said there are 60,640 acres of vineyards in the Russian River watershed and 70 percent of those vineyards are within 300 feet of salmon habitat in the watershed. Russian River Coho salmon are an endangered species under both federal and state law and in grave danger of extinction. Chinook salmon and steelhead trout are threatened species under the federal Endangered Species Act. The State Board has known about the problem for nearly four decades. In 1974, the board initiated a court suit over the diversion of Napa River water to similarly protect Napa Valley vineyards, declaring the practice unreasonable under state water law. An appellate court decision in 1976 affirmed the Board could regulate frost protection water pumping, even though it might cause wine growers some inconvenience and expense. But the appellate court also concluded that whether water diversion for frost protection was an unreasonable use of water should be decided on a case-by-case basis. Thus, while Napa County growers need permission and approval from a water master to divert creeks and streams for frost protection, Russian River watershed growers in Sonoma and Mendocino counties have been able to legally or illegally divert water entirely unmonitored for the last three plus decades, even if it temporarily dried up the streambed in places and killed off endangered fish.
In 1997, a Water Board staff report said frost protection practices were harming the Russian River salmon fishery. Nothing was done for another decade until the documented fish strandings in 2008. The Water Board spent the next three years formulating the watered down regulations which were adopted September 20. The new regulations state that after March 12, 2012, frost protection diversions downstream from the Warm Springs Dam in Sonoma County and the Coyote Dam in Mendocino County – from March 15 to May 15 – can only occur under a Water Board-approved water demand management program (WDMP). This includes groundwater pumping which is hydraulically connected to the Russian River watershed. But read further into the regulations and you find the water board is giving the industry three years to develop such plans. Expect water board approval of requests for delays from the grower groups. The first initial WDMP is due February 1, 2012. The first annual report is due September 1, 2012. Expect large data holes in these documents. Either individual growers or “governing bodies” – the ambiguous term the water board concocted to describe industry groups who have formed to address the frost protection problem – must create WDMPs that include an inventory of frost diversion systems, a stream stage monitoring program, an assessment of the risks to fish posed by frost diversions, and annual reporting of data, activities and results. Farmers also have to monitor when and how much they pump and establish they have the water rights to do so. Alternatives to spraying water include wind machines and heaters, both expensive. And growers using sprinklers can store water in storage ponds during high winter flows to reduce impacts during a Spring frost event.
Patrick Porgans, who is a long-time critic of the Water Board and was a consultant to some Russian River landowners alarmed by the plummeting fishery numbers, says the new program is doomed to failure because the water board has delegated its authority to the people causing the problem. In his written comments prior to the Board’s adoption of the new regulations, Porgans wrote: “The scope of the frost protection threat rests solely within the regulatory and statutory purview of the board, and is obviously beyond the vested interests’ authority (Sonoma County Board of Supervisors, Wine Country growers, and/or the nongovernmental organizations such as Trout Unlimited). The record will also attest to the fact that many of those same entities are ‘responsible’ for the deplorable conditions and declining fisheries within the watershed.” “Let us not forget,” Porgans added, “that as far back as 1988, government-funded anadromous fish doubling populations [goals] for the Russian River were implemented. If the official numbers are accurate, the populations are worse now than ever. This decline in fisheries within the watershed have [cost] and continue to cost the public tens-of-millions of dollars, while the fish and other water rights users’ rights have been ignored by this board and/or selectively ‘enforced.’” “No more whining in whine country,” Porgans insists, calling for prosecutions of Endangered Species Act violations and a boycott of area wines until the industry – which boasts it is fish friendly farming – halts the fish killing. He says the water board virtually invited growers to help craft the regulations. Porgans also insists the Water Board needs to declare the Russian River watershed completely appropriated and stop granting permits for new vineyards. Both environmentalists and growers predict lawsuits will be filed over the new regulations.
However, Porgans is up against the billion dollar California Wine industry ($400 million in Sonoma County alone) and its very smooth public relations convince to convince wine buyers that Wine Country vineyard a fish friendly. Farm Bureaus and growers groups have complained bitterly about the new regulations, claiming the new bureaucratic rules will actually hinder efforts to help the fishery. They claim the area’s 3,000 grape growers are voluntarily solving the problem.
Sean White, manager of the Russian River Flood Control and Water Conservation Improvement District, complained to the Ukiah Daily Journal the day after the regulations were adopted that there was “no data” to link frost protection diversions to declining fish numbers. White claims growers who formed the Russian River Frost Program spent significant amounts of money on water storage ponds. White claimed “we fixed it [the fish stranding problem] proactively.” The Mendocino County Farm Bureau’s website had this to say about the new regulations (before they were adopted): “According to the [Water Board’s] own analysis, this regulation is expected to cost a typical 160-acre vineyard from $9,600 to $352,000 in order to initially comply with its mandates. It will cost an additional $3,000 to $36,200 per year to keep that 160-acre vineyard in compliance. It is expected to cost a typical 40-acre vineyard from $2,400 to $87,880 in order to initially comply with its mandates. It will cost an additional $750 to $9,000 per year to keep that 40-acre vineyard in compliance.”
Others, however, see it differently. Steven Grams of Ukiah wrote the Board in support of the regulations, as weak as they are. “Many people in Sonoma and Mendocino counties are in denial of the salmonid kill experienced each Spring by the water diversions,” Grams wrote. “I applaud the [water board’s] attempt to rectify the situation.”
Bob Baiocchi of the California Fisheries and Water Unlimited group, has been observing the Water Board and the California Department of Fish and Game for half a century. He wrote the water board before the regulations were adopted, noting that the new rule was unclear whether growers could pump the “underflow” of the Russian River for frost protection. “Diverting the underflow requires a water right permit. Pumping groundwater does not,” Baiocchi said. Baiocchi also noted “[r]egulations that are not monitored are meaningless. There must be public assurances that the Board and its staff will monitor and enforce the regulations to prevent harm and injury to threatened and endangered steelhead and salmon species.” Baiocchi also said the Department of Fish and Game and the federal National Marine Fisheries Service, a branch of the National Oceanic and Atmospheric Administration (NOAA), were virtually worthless in pursuing Endangered Species Act violations. Baiocchi said it was evident that Fish and Game “is very political and may not take legal to prevent violations of the regulations.”
Porgans said the Water Board, or a court, should “adjudicate” the Russian River, a process in which all claimed water rights holders participate in an equitable division of the river’s water, and presumably, in which minimum flow requirements are established to protect public trust resources, including fish. A water board staff report acknowledged the water board had authority to conduct an adjudicative version but argued, “In light of the cumulative nature of the problem, however, conducting an adjudicative proceeding or proceedings would not be the most effective regulatory mechanism for addressing the cumulative impacts of numerous diversions.” Perhaps when the salmon and steelhead have vanished from the Russian River watershed, the Water Board will get around to conducting an adjudicative proceeding. But don’t hold your breath on that one.