December 6, 2002
Napa County Board of Supervisors
1195 3rd Street
Room 210
Napa, CA 94559
Dear Supervisors,
I have some additional comments regarding the Proposed Streamside Setback Ordinance.
It seems to me that when you begin your deliberations you must ultimately decide the scientific question as to whether setbacks are needed at this time to protect and restore the Napa River fisheries or not. As you know I believe that setbacks are not required at this time and my reasons are set forth in both my September 25 letter addressed to the Planning Commission and my December 3 comments made to you at the public hearing.
However, if after reviewing the scientific documents and the public testimony you decide that setbacks are required to meet the goals as stated in your December 3, 2002 Memorandum regarding the Stream Setback Revision Ordinance, please consider my following comments when crafting the ordinance.
1) If the Napa River fisheries need the protection which setbacks purport to provide then there cannot and should not be any exemptions. The fish cannot know which parts of the river you purport to regulate, allegedly having beneficial habitat and which parts of the river you will exempt, allegedly having the existing purported harmful habitat.
2) In light of your stated goals, I would argue that there has been no science presented that would justify exempting vineyard replants, residential homes, gravel mining etc. What set of standards will you use to exempt one type of land use and not another? If you have decided on such a set of standards please make it available to the public so that we too may understand why some land qualifies for an exemption while other land does not? This is only fair.
You have exempted vineyard replants, yet where is the science or logic that it's OK to disc an existing vineyard right to the riverbank's edge and yet the adjoining parcel must have a setback of 100 feet or more? It seems to me that your proposed exemptions are both arbitrary and capricious and, therefore, likely illegal because of unequal treatment under the law. It reminds me of the old adage: "Don't tax me, don't tax you, tax that guy behind the tree."
3) If the restoration of the Napa River fisheries is truly the goal of this proposed ordinance, then "all" stakeholders should bear the burden. If the setback results in a legal taking of a parcel then the County should purchase the land, not exempt it. An exempt parcel does not contribute to the stated goals. At the public hearing the Napa Valley Vintners, the Farm Bureau and the Napa Valley Grape Growers all voiced their support for the Proposed Ordinance and its goals and should be happy to support an ordinance with no exemptions. Volker Eisele, speaking for the Grape Growers, said "Anyone who says there is not enough information (to pass the ordinance) is totally ignorant." It would be unthinkable to suggest that these organizations support the ordinance only because vineyard replants are "exempted" from regulation, even though the Ordinance does have the appearance of being both "protectionist" and "anti-competitive" in nature.
4) If I understand correctly, you propose to achieve your stated environmental goals by regulating and imposing standards on land, which is in its natural and undeveloped state and you propose to exempt land which is farmed, no longer in its natural state and which continues to be unregulated. In light of the stated goals of the Proposed Ordinance, it makes no sense that you are considering setback regulation on natural undeveloped land, yet you continue to allow existing Valley floor vineyards and agriculture to be exempt and unregulated.
5) We all know that vineyards and agriculture exist within our city limits, and since the Napa River runs through both county and city land I suggest that you send this ordinance to the cities of Calistoga, St. Helena, Yountville and American Canyon and request that those cities pass a similar ordinance.
6) While the phase 1 study of the TMDL is a beneficial document it is limited in its scope and hence is an incomplete document for dealing with the Napa River watershed basin because it does not deal with the populations and growth of our cities and how that affects the health of the Napa River system.
Thank you for considering my comments, but once again, I urge you to abandon this ordinance until scientific study confirms that setbacks are the missing piece of the puzzle that will restore the Napa River fisheries.
Sincerely,
Stuart Smith
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