To: Napa County Board of Supervisors September 25, 2002

Fr: Stuart Smith, Smith-Madrone Vineyards & Winery

Re: Streamside Setback Revision Ordinance

As you may know, I was a member of the Watershed Task Force and would like to correct several misconceptions which have recently come up both in newspaper coverage and public testimony about the recommendations, and to offer comments concerning the proposed Stream Setback Revision Ordinance. 
I. - WTF Recommendation. First - The WTF recommendations should be viewed as the result of a contentious political process, and nothing more.
Second - It has been a common mistake perpetuated by the media and other public speakers to interchange the word "unanimous" for the word "consensus" when referring to the WTF recommendations. At the public presentation of the Final Report to the Board of Supervisors I clearly stated that the report was not unanimous.
Third - The science, and scientists, presented to the WTF were not of the members' choosing and alternative scientific theories were not presented.It was a classical Hobson's choice - take what you're offered or you get none at all. Even if there was good science the WTF, as a group, was not qualified to evaluate it.Any and all recommendations made by the WTF cannot and should not be viewed as based on scientific findings. 

II. - TMDL Study. On June 14 the final report of the first part of the TMDL study was released. For years the environmentalists have proclaimed the fact that the Napa River was declared impaired because of sediment. The listing of the Napa River as "impaired" was based on visual observations only. Now the TMDL report states that sediment is not the problem so many assumed it was.
The rationale for most of the Conservation Ordinance and for this Ordinance is based on the faulty assumption that sediment is an important factor in the decline of Napa River fisheries. The following exculpatory statement should be sufficient cause for you to reexamine the need for this Ordinance. Quoting from the report on page 13:
"Our results indicate that feeding opportunities were probably not lost for more than one or two days following even the largest storms. Therefore, turbidity probably did not pose a significant limitation to feeding by steelhead during the period studied… Within the narrow time frame of this study, no turbidity effects were found, despite our examination of 17 tributaries and 7 sites on the mainstem Napa River. This suggests that there is not a permanently elevated chronic source of sediment causing deleterious turbidity levels."
In the near future there will be additional studies that will address the issues facing the Napa River. In light of the TMDL study, and the acrimony that this proposed ordinance is creating within our community, it seems to me, that as leaders of this County, it is your duty to exercise restraint, and wait for 2nd phase of the TMDL study to be issued.

III. - Reasons given to pass this Ordinance. 1) "If we don't pass regulations to protect the environment, then some one else will come along and make the rules for us." Says who? This is a red herring and false. I challenge anyone to provide proof in the form of a letter or an agency that's making such a threat. There is no such threat and there will be no such threat because there is no justification for such action from any agency in this country.
2) "A crisis exists within the Napa Valley and action must be taken now, before it's too late." This is inflammatory rhetoric with no basis in fact. The Napa River is cleaner today than it was 30 years ago. Even studies paid for by the environmentalists show that the Napa River is not in a crisis mode, it is actually healthier than anyone suspected:
a) A Sonoma State University study requested by Chris Malan and funded by Watershed Associates found that "Napa's ordinance is a model of effective regulation for vineyard erosion control" (St. Helena Star March 16, 2000) - no crisis here. 
b) Friends of the Napa River released their macro-invertebrate study of the Napa River system, with Chris Malan as the project manager. According to the April 1, 2001 Napa Valley Register: "Study director Charley Dewberry said an 'astounding' variety of aquatic insects were discovered, including several rare types of blind crustaceans and a unique stone fly… Dewberry said the diversity of species found, much greater than the number found in the Russian River, surprised researchers. 'I'm not aware of anybody knowing… that was the case for Napa,' he said. …The group originally planned to compare their results to the Russian River but found it was not a good comparison. Groups testing the Russian found any sample with more than 36 species to be highly diverse, while only two of 33 Napa samples had less than that amount."
c) The March 21, 2002 Napa Valley Register headlines "Study indicates steelhead abundant in Napa River." Another Friends of the Napa River-funded study.
These studies, along with the TMDL report, have found that the Napa River system is healthier and contains a much higher level of diverse aquatic species than all of the heated rhetoric would have us believe.

IV. - Reasons why you should abandon this Ordinance. 1) Stream Setbacks was the most divisive and controversial of all the subjects discussed by the WTF. It is my opinion that the discussion of stream setbacks should be the last issue dealt with by you, because it involves the greatest of expenses, the confiscation of private property.
The WTF was not presented with scientific evidence or research which establishes with a certainty that if setbacks are enforced the fisheries will return to the Napa River system.
The question must be asked and scientifically answered before this Ordinance is passed: will the taking of land for setbacks be the last piece of the puzzle that finally restores the Napa River fisheries?
2) On page 20 of the June 14, 2002 TMDL report it states: "Historically, about 300 miles of the 1,300 miles of stream channels within the Napa River basin were likely accessible and suitable for spawning and rearing of steelhead in most years (USFWS 1968)."
Do the math; the 300 miles of streams suitable for fish would mean 300 miles of class 1 streams, and with a 150-foot setback that totals 11,000 acres of land. The other 1,000 miles, even without fish, would either be class 1 or class 2 streams, also requiring a 150-foot setback. 1,300 miles with a 150-foot setback will total just over 47,000 acres of land. Please don't forget that this ordinance is for the entire County and the 47,000 acres does not include the Putah Creek and Berryessa basins. The combined total represents close to 10% of Napa County landmass. 
In a phone conversation with a member of the Napa County Tax Assessors' office this past Monday he stated that if the ordinance passed it would have an unknown effect on the tax assessment of the County but he offered that the amount would be "huge."  
Before you pass this ordinance we should know the social and economic impacts of this ordinance.
3) Because there is science that refutes the stated basic justification for this Proposed Ordinance, namely sediment control, I believe that this proposal is in conflict with the County's General Plan that supports agriculture as the highest and best use of the land. Additionally, the TMDL study clearly states that more study is required.

V - Chaos During the 1991 public hearings about the Conservation Ordinance I stated that with the proposed ordinance, both those who govern, you, and those who are governed, me, wanted the same thing; no soil erosion. Where we differed was in the manner and means that the ordinance was to be administered. The common goal that existed for the passage of the Conservation Ordinance does not exist today. 
In 1991 it was you, the Planning Commission and the Board of Supervisors, who passed the Conservation Ordinance that became this quagmire of litigation, delay and expense. This is your responsibility and you have failed to correct the chaos that currentl exists in Napa County Agriculture. 
Erosion Control Permits have not been issued for the past three years, and there is no expectation that 2003 or 2004 will be any different. This situation is totally unacceptable!
Until you fix this chaos and return the permitting process for Erosion Control Permits back to some semblance of normalcy ( fees, expenses, timing) I urge you to abandon this and all other proposed changes to the Con Regs. 
Please, correct the current problems with administering the Con Regs before you plunge us into even greater chaos with this proposed Stream Setback Ordinance.

  
VI. - Summary. In closing let me sum up by stating that the Napa Valley does not have an environmental crisis, it has a regulatory and leadership crisis.
If you pass this ordinance, you are doing so because of politics, pure and simple. You will not be passing this ordinance because the environment demands it.