Napa County Board of Supervisors
RE: Stream Setback Ordinance, Dec. 3, 2002
For inclusion into the record of the public hearing
Dear Supervisors Varrelman, Rippey, Wagenknecht, Dodd, and Luce:
During the Planning Commission hearings on this issue, it was very clear that a large number of people had serious objections to this ordinance, and many of the more informed and articulate speakers made very well reasoned appeals to either reject or drastically change it. I urge you to review the transcripts of those public hearings to gain an appreciation for the overwhelming public opposition to this ordinance that was expressed at those meetings. The Planning Commissioners heard and appreciated that opposition, and apparently agreed with much of what they heard.
Although apparently under considerable pressure to deliver an ordinance to the Board, even the Planning Commissioners effectively disowned this ordinance before forwarding it. At the end of the November 13 public hearing, during the vote on the decision to forward it, the Commissioners unanimously insisted that the wording of their resolution be changed to eliminate the recommendation that the Board of Supervisors approve the ordinance. You will notice that the Commission's final resolution forwards the ordinance to the Board with the recommendation that it be "considered". Their discussion of the importance of this distinction is recorded in the hearing transcript.
Furthermore, near the end of one of the earlier hearing days, each of the Commissioners individually expressed his disapproval of the ordinance as it was then written, and ordered staff to rewrite the ordinance to make it less coercive and more incentive driven. The staff responded with some relatively minor changes that in my opinion did not change the objectionable character and impact of the ordinance.
Unfortunately, the Commission apparently interpreted declining public attendance at the next hearing as an indication that the public was satisfied with these changes, and that the Commission could forward it to the Board as is. The more likely truth is that people who had taken a day off work to voice their dissent felt like they had already said what they had to say, and that they could not take another day off work to say it again. The attendance at this first Board of Supervisors public hearing is a clear indication that the public is not yet satisfied with this ordinance. Declining attendance at subsequent hearings should not be taken as proof that the public has been satisfied by changes that you may direct.
I think this ordinance has very little merit, and I think as you listen to the presentations during the public hearing, I think you too will conclude that this ordinance is flawed. One obvious problem is that several false claims made in support of this ordinance don't seem to bear up very well under scrutiny.
Those false claims include the claim of legitimacy based on the Watershed Task Force endorsement. Several Watershed Task Force members have said that this is not the ordinance they had in mind, that stream definitions were changed by others after the Task Force was adjourned, and that therefore all the Task Forces decisions and recommendations need to be revisited in light of the new definitions. The Task Force members that I have heard speak all feel exploited and betrayed by the extremists who hijacked their process.
The false claims include the claim that federal agencies have declared our watershed impaired, and that we must therefore take drastic action to improve it, or the federal government will intervene and do it for us. If our watershed is impaired, then why does the Sonoma State University study conclude that the Napa River System is healthy, has a surprisingly diverse mixture of aquatic life, and should be held up as a model of watershed management? Why then, do we read that sediment levels in the Napa River have been reduced by 70% since implementation of the 1991 Hillside Ordinance? Why, then, do we see reports in the newspaper that salmon and steelhead are returning to the River and its tributaries? And if the federal government is about to come down on us for our poor watershed management, then why is the Napa River Watershed a prominent exhibit on the U.S. Government's own Cleanwater.gov website as a major watershed management success story, based on the effectiveness of our 1991 ordinance? Yet the proponents of this ordinance continue to claim that the federal government will soon be forcing us to clean up our watershed. Who are they trying to fool, and why?
Another false claim is that this is an incentive based ordinance. Clearly, it is not. The ordinance first suspends a property owner's right to use his property, then offers to allow him some limited use if he meets all the new conditions. We can all see that this is not offering incentives; that it is really just extortion. It is like cutting off someone's air, then offering to allow him a little air if he meets our conditions. Phrasing this assault in incentive related terms does not change the fact that at its heart this ordinance is coercive and abusive.
The so-called incentive section of this revised ordinance is a transparent fraud. It looks more like a threat than an incentive. It basically says that if you don't "voluntarily" impose all these restrictions on yourself, then we'll hit you with this ordinance which will impose all those same restrictions. That's like saying that if you don't voluntarily hand over your wallet, we'll hit you on the head with this hammer, then take your wallet. The so-called "incentive" section of this ordinance simply raises the ordinance itself as a hammer over our heads to persuade us to "voluntarily" institute our own restrictions. Upraised hammers are not incentives.
Supporters falsely claim that the ordinance has been changed to provide residential exemptions. But anyone reading these so-called exemptions can see that they are not really exemptions at all, but rather a series of alternate tests a project must meet in order to be approved under this new section of the ordinance. Even though the threshold for approval of some of these "exempt" projects appears lower, an application must still be made, fees must still be paid, conditions must still be met, and a permit must still be obtained. Does this square with your definition of "exempt"?
Supporters claim that the ordinance has been simplified to make it easier to understand and apply. But anyone looking for simplification must wonder why the ordinance has grown from 25 pages or so to nearly 40 pages, plus another 80 pages of appendices.
The ordinance serves no functional, measurable, attainable goals, and thus it offers no means for evaluating its effectiveness. Unless, of course, the goal is merely to separate landowners from their land, in which case it will be very effective.
The proposed ordinance may actually be environmentally counterproductive. Several speakers pointed out to the Planning Commission that large setbacks create a broad strip of wasteland along every stream, in which the alienated owners no longer have an incentive to be good stewards. Representatives of public agencies involved in voluntary stewardship programs said that this ordinance jeopardizes their good and productive work, and that because of this impending regulation, some property owners have already backed out of voluntary restoration projects that were close to implementation.
The proposed ordinance is based on the false proposition that landowners are the enemy, and that environmental protection is somehow incompatible with private property rights, while we all know that the opposite is the real truth. The true proposition is that the people who live and work on the land are the best stewards of it, and private ownership of land provides the strongest incentive to protect it. Why can't we have an ordinance based on the true proposition?
Those who persist in believing that only coercion will work to improve the watershed are doomed to a miserable and well deserved failure. The watershed will never be improved without the willing and enthusiastic support of the people best positioned to improve it - those people who live and work in the watershed. If we want to ensure a healthy watershed, we must first win the hearts and minds of the people who live there. No one has ever won hearts and minds through coercion.
Hearts and minds are won by leaders who convince and inspire others to follow. If we want people to support our effort, we have to define the meaningful, measurable, performance based goals we hope to achieve, and align people behind those goals. If we actually assess water and streambed quality in the various tributaries, actually identify and quantify specific erosion problems, specific streambed problems, and specific water quality problems, then we can rally people in support of correcting those specific problems.
Instead of allocating more resources to restrictions, regulations, and enforcement, we should allocate those resources to meaningful research, education, information, outreach, publicizing, popularizing, marketing, encouragement, inspiration, motivation, assistance, and recognition of jobs well done. We can be far more successful at preserving, and enhancing the health of our watershed if we enlist the willing and enthusiastic support of the people who will actually do the work.
This ordinance does none of that, and therefore it is not a good ordinance. You have seen hundreds of angry, frightened people leave their jobs and families to come here to convince you that this is not a good ordinance. Their arguments are compelling, and the emotion in their voices says as loudly as their words how important this is to them. I hope you will understand the serious impact this ordinance would have on their right to use and enjoy their property, and that you will not allow this unnecessary curtailment of property rights to become law.
You can defuse all the dissent and resolve the public disharmony this ordinance creates by insisting that a positive, cooperative approach be taken to watershed management. We can have a much better, much more palatable, and much more effective ordinance if we take a positive, cooperative approach. We can exercise true leadership only by inspiring others to follow our lead, not by forcing them into line through coercive regulations.
The bottom line is that we can achieve all our common objectives without destroying property rights and without all the acrimony this ordinance generates. So please resist the pressure and the momentum, and the desire to be done with this. Be as courageous as the citizens who have stood up here to defend themselves and their dreams. Reject this version of the ordinance and lift the moratorium, because the moratorium is just as counterproductive as this ordinance would be.
Direct staff to redesign this ordinance to mobilize local government support for good stewardship, as opposed to mandating arbitrary setbacks and cumbersome and expensive permit procedures. Continue this public hearing until January or February to allow more time for public input on viable alternatives to this ordinance. Use the intervening time to publicize this effort and to draw into the discussion the many property owners who still do not know how this ordinance would affect them. Only when we have the ear of the true stewards of the land can we expect to mobilize them to preserve and enhance the quality of our watershed.
George Bachich
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