Napa County Board of Supervisors
Jan. 10, 2003
This ordinance is supposed to be grounded in science, but there is considerable doubt about that, isn't there. The claims of scientific justification for this ordinance are at the least greatly exaggerated, and perhaps totally unfounded. Most of the arguments can easily be challenged if not refuted outright, and some fall of their own weight under the simple application of common sense.
For instance, the whole scheme is based on the dubious claim that Class 3 streams are the primary entry points for sediment and pollution, but as Ed Schulz and others have so ably pointed out, the real points of entry are the Class 4 streams. Man made drainage courses are found everywhere man resides. Private driveways have roadside ditches. Roofs have downspouts. Patios have drains. Wherever we create some high ground to keep dry, the water runs around the perimeter. Vineyards have drainage ditches and culverts. County roads have roadside ditches and culverts. City streets have storm drains. All these are class 4 streams, and all directly bypass the proposed setbacks and dump whatever they are carrying directly into the nearest stream, of whatever class.
Wherever there are humans, class 4 streams are the real entry points. The only little glitch is that the proposed ordinance misses the mark because class 4 streams are exempt. And they have to be, because if you try to move human activity back from a ditch, the ditch moves back with them. Wherever humans go, they make class 4 streams.
The setbacks are supposedly justified by the need to filter runoff through the grass in the setback. However, wherever there is human activity, even beyond any size of setback you can name, the class 4 streams will concentrate runoff and that runoff has to travel down hill, and the path it takes is called a stream. No matter where you put human development, a certain amount of concentrated runoff is created by it. And the distance you choose to keep between that development and a stream has no effect on the amount and quality of the runoff that arrives at that stream through the class 4 streams that directly bypass that setback.
If you want to control the amount of that runoff in those class 4 streams, you can develop techniques and standards for holding or percolating some limited amount of it. But moving development farther back from a stream has no impact on the amount of water generated. If you want to control the quality of that runoff in those class 4 streams, you can develop techniques and standards for filtering and settling the sediments out of it, as our 1991 ordinance already does, but establishing a wider setback will have no impact on the quality of water in that class 4 steam, or in the class 1 stream it directly feeds. Setbacks don't even address the problem.
The original impetus for this whole process was supposedly outrage over erosion from some existing vineyards, and we are supposed to believe that passing this ordinance will alleviate that problem. The only problem is that under this ordinance existing vineyards are exempt, so the ordinance doesn't even address the problem. And as for all those future vineyards that need so desperately to be controlled, I don't need to remind you that by all estimates, there are only enough parcels left suitable for grapes to produce a 10% increase over the acreage we already have. It does not make sense to deprive every rural property owner of the right to use and enjoy his property just to control that 10%, especially while leaving the other 90% unregulated.
The ordinance purports to protect and enhance fish populations by regulating human activity near streams. The only problem is that as Carole Meredith pointed out in her letter to you on December 9, the Phase 1 TMDL report has established no connection between the human behavior you seek to regulate and the health of the fish populations. So where is the justification for the regulation? Maybe a future study can demonstrate it, but as of now, we do not have the science.
The ordinance purports to address the problem of excessive sediment in the system. The only minor glitch is that no such problem has been identified. In fact, the Phase 1 TMDL report clearly states that the scientists performing the study set out to verify their assumption that sediment was a limiting factor on fish populations. They set up monitoring stations on 17 tributaries of the Napa< River and at 7 locations on the main stem of the Napa River and monitored those stations continuously for 2 years. The only problem is that during all that time, at all of those stations, they found not one single incidence of excessive sediment. But we are supposed to give up the use and enjoyment of our property in order to reduce those sediment levels.
I have heard that the setbacks will produce shade to cool the water so the fish will prosper. That may be true where there is water to cool. But it is no justification for setbacks in all those upper reaches of class 2 streams and in every single class 3 stream, where there is no water anyway during the season when water temperature is of concern. We all like shade, and we all like trees. But cooling the water is a non-issue when there is no water to cool, and in that circumstance there is no scientific justification for legally mandating shade. The cooling of the water argument is one that may have some validity in class 1 and even some class 2 streams, but it is an abuse to extend that argument up into the class 3 network.
I have heard that the overhanging trees are an important source of food for the fish, and I assume that means those hapless insects that are blown off a tree limb and fall into the water. However, that argument does not apply where there is no water, because any insect that does not land in the water will simply walk back to where he came from, and will never become food for any fish. It does not even apply in a class 2 stream if the water is not swift enough to prevent the insect from swimming to safety before he gets to the class 1. Using the fish food argument to mandate trees overhanging most class 2 streams is a stretch, and extending that argument to class 3 streams is clearly an abuse, and an example of why we are so skeptical of all the claims that this ordinance is scientifically justified.
These setbacks are not zoning regulations. They are no development zones. They are in fact conservation easements. They are identical to the conservation easements sought by the Land Trust to keep certain property wild and undeveloped in perpetuity.
Everyone knows that conservation easements have value. The IRS knows conservation easements have value, and grants tax deductions for donating them to the Land Trust. The County Assessor knows conservation easements have value, because he lowers the assessments on parcels burdened by them. The Land Trust and its supporters all know conservation easements have value, because they pay good money for them. All of us know it, but the proponents of this ordinance would have you pretend just for a moment that it is not true, so that in that moment of blindness you might pass this ordinance. These setbacks are different from other conservation easements in one and only one important respect. These conservation easements are stolen.
There are those that want you to believe that the Napa Valley Land Stewards Alliance is a bunch of whiners who are not really impacted, that this ordinance is really nothing, that it will not impact anyone, and that the opponents of the ordinance oppose it because they don't understand it. But the reverse is true. Either the proponents of the ordinance don't understand it, or they understand it fully well, and want to cloud your understanding of it so they can more easily convince you to pass it.
They would have you believe that 3,000 miles of new 50' to 150'wide conservation easement will not have an impact on anyone. Think about 3,000 miles. That is the great circle distance from here to New York plus the distance from New York to Orlando, Florida. They want you to believe that a 50 foot wide conservation easement extending all the way across the United States and down the eastern seaboard would not really impact anyone. They want you to believe that cramming that entire 3,000 mile long conservation easement into Napa County will not impact anyone. They want you to believe that losing the right to use and enjoy a wide swath of land running through our property will have no impact on us.
Well, hundreds of your constituents have taken time from their families, jobs and businesses to come here to tell you that it does impact them, and that they do not want you to pass it. Why don't you listen to them?
George Bachich
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