April 1, 2004
Dear Supervisors:
In addition to the general concerns outlined in my previous letter, I have the following specific concerns and questions about the intended meaning, purpose, and logical basis of these special rules. Some of these special timber rules seem a bit absurd. Some look like thinly veiled attempts to prevent any more vineyards on the hillsides. Some are already obsolete, in that they appear to be an effort to bring the State Forestry rules into conformance with Napa County’s Stream Setback Ordinance, which no longer exists. I believe the specific questions and concerns listed below, all of which stem from the major changes to the rules request since the last Napa County Public Hearing, constitute additional grounds to reopen the public hearing on these special rules before their final consideration by the Board of Forestry.
Thank you for your consideration.
George Bachich
946.1 Definitions
Winter Period: Why does the winter period in Napa County begin one month prior to the winter period in the rest of the state? Why does the winter period in Napa County DWSWs begin two and a half months prior to the winter period in the rest of the state? Is there any weather data to support this? If this definition is used to prohibit work on THPs with intent to convert after September 1, would that be an unnecessary restriction?
Domestic Water Supply Watercourse: Why does this include Class III streams? NVLSA demonstrated the absurdity of the Class III stream definition during the Measure P election campaign. It includes even tiny rivulets, any little erosion track where water runs only during heavy rains. Is this just more Jones and Stokes mischief, is it an attempted end run around the defeat of Measure P, or is it an obsolete definition that someone merely forgot to delete?
946.2. (a) Watershed: The DWSW in which the project is located.
Does this mean that some assessment has to be made of the entire DWSW watershed, even though the Plan Area might only include a small part of one drainage in that watershed? How cumbersome will this be? And what purpose does it serve? How can harvesting along one tributary drainage within a watershed have any impact on other tributaries in separate drainages that connect to the main stem downstream from the Plan Area? Is this just an arbitrary obstacle to timber harvests/conversions within DWSWs?
946.2.(c) Visual Resources: The visual assessment area is the area from which the logging area is readily visible to a significant number of people.
What does "readily" mean? Does it include with binoculars? Does it mean just from designated scenic roads? And from what distance? What does "significant" mean? Is this clause intentionally vague in order to allow arbitrary interpretation and enforcement?
946.2.(d) Traffic: All private and public roads within Napa County on which logging traffic will travel with a paved surface less than 20 feet in width.
Why "private" roads? Don't the owners of those roads control their own traffic? What is the County's interest in private roads? What is "logging traffic"? Does this mean logging trucks, or does it also include loggers driving to work in their cars? Why should traffic assessments be different for THPs with intention to convert than for THPs without intention to convert? Do the two types of post-harvest intentions burden the roads differently somehow? Is this just another obstacle calculated to make conversions economically unattractive?
946.4. Log Hauling
What is different about a logging truck coming from a THP with intent to convert, as opposed to a logging truck coming from a THP without intent to convert? Why does one truck require special signs while the other does not? Why does one truck need to avoid commute hours and school bus hours while the other does not? Is this just a way to discriminate against conversions?
946.5 Flagging
Why does a road on a THP with intent to convert require flagging while the exact same road on a clear-cut regeneration harvest plan would not? Is this just to discourage conversions by making them more expensive?
946.6 Debris deposition
Why do construction wastes and road spoils deposits from a THP with intent to convert need to be mapped while the exact same debris deposits from a clear-cut regeneration plan would not need to be mapped? Does the County have something against landowners wishing to convert to a more profitable form of agriculture?
946.7 Performance Bonding
Why should bonding be required for a THP with intent to convert, while it is not required for an identical project without the intent to convert? Are the financial risks any different? Or is this just another arbitrary obstacle to conversions?
946.8 Hours of operation
Why must the hours of operation be restricted for THPs with intent to convert, while the hours of operation for identical THPs without intent to convert need not be restricted? Do the post-harvest intentions somehow intensify the noise or dust? Or is the County just trying to make it hard on people intending to convert?
946.9 Watercourse Mapping
Why do we need stiffer mapping requirements for THPs with intent to convert? These same watercourses need not be mapped if there is no intent to convert. Doesn't the County have the authority to require mapping as a condition of the permit to plant the new crop? Why is a BOF rule necessary for this?
946.10 Equipment Limitation Zones
This looks a little bit like a back-door Class III stream setback ordinance. It defines the ELZ as 25 to 50 feet on each side of a Class III stream, depending on side slope, then prohibits equipment entry and prohibits removal of more than 50% of the canopy and 50% of the shrubs within the "setback". Why is this rule being enacted after Napa County voters so overwhelmingly declared that Class III streams do not merit setbacks? Retention of the canopy in these setbacks will shade adjacent land, making it unsuitable for vineyards. This could make conversion impractical, and for no real environmental gain. Is that the real purpose of this rule?
946.11 Reduction of soil loss – (a) areas…within 150 feet of DWSWatercourses (including Class III streams)
Why must erosion control measures be in place by September 1? September is a drought month. And why is this requirement imposed only on harvests with intent to convert? Is not the deadline for all other vineyard development and all other construction projects in Napa County October 15? Why shouldn't conversions to vineyard be treated like any other Napa County vineyard development project and be subjected to the same deadline? Is this just another obstacle intended to make it hard to convert marginal forest land to more productive agricultural use?
946.11 Reduction of soil loss - (b) approaches to watercourse crossings.
How long is an “approach”? How far from the watercourse does it extend? Why Class III? What is an EEZ? Is it different from an ELZ?
946.12 Domestic Water Supply Protection
This is written with very poor syntax, including the use of noun clauses as definitions for the verb “degrade”. In addition, (1) is confusing. What is filtration over and above normal seasonal variation? Does (2) refer to the need to lower reservoir levels in the fall in order to accommodate greater anticipated runoff in the winter? If so, how does that constitute degrading the functioning of a domestic water supply? Does (4) refer to chemical and nutrient loading from subsequent vineyard development? If so, why does this require a forestry rule? Doesn’t Napa County already have control over planting through the existing County discretionary permit process for vineyards?
The paragraph formerly labeled (b), “The Director may require a post-harvest evaluation…” appears superficially to be reasonable and harmless, but in fact forces the Director to require a post harvest evaluation in every project simply because any new road construction or any harvest probably constitutes an ”accelerated rate of road construction or harvesting”. An increase from zero to one is an acceleration. Also, the term “potential land failures” raises the unanswered question of who decides what is a potential land failure, and the term “near” used in the phrase “near streams and springs”, is not defined. Is all this intentional vagueness calculated to allow arbitrary interpretation and enforcement? Does this arbitrary interpretation make THPs discretionary permits vulnerable to Sierra Club legal mischief?
946.13 Road Construction
(b) What are Watercourse and Lake Protection Zones? How large are they? Are these essentially setbacks? Are they already defined elsewhere in the State BOF regulations?
Why are roads in a THP with intent to convert treated more restrictively than roads in a THP without intent to convert? Is this just another way to make conversions more difficult?
(c) This paragraph seems moot, because road construction in THPs on slopes of 30% or greater cannot begin until after issuance of a Napa County discretionary use permit (see 946.13(d)). I know the Napa County Hillside Ordinance provides for soil disturbing activities on slopes greater than 30% with a use permit, but does the County ever actually grant such use permits?
(d) Does requirement of a (discretionary) use permit make the THP a discretionary permit vulnerable to Sierra Club legal mischief? If these use permits for soil disturbing activities on slopes over 30% are routinely denied, doesn’t this paragraph constitute a surreptitious prohibition of THPs on slopes of 30% or more?
946.14 Design of Drainage Structures
Why are culverts prohibited on THPs with intent to convert, while they are allowed on every other type of road, including County roads? Isn’t this just blatant discrimination against conversions?
946.15 Maintenance Period
Why is the maintenance period for conversions greater than the maintenance period for all other THPs? Isn’t this discriminatory? And if a conversion takes place, isn't the maintenance period irrelevant, since the vineyard and its roads will naturally be maintained for the life of the vineyard? Doesn't the concept of maintenance period really apply only to logged land that would otherwise be abandoned? Why should it apply at all to conversions?
946.16 DWS Protection: Road Maintenance
Why should oil and salt be prohibited in Napa’s DWSs but allowed everywhere else? And what about lime stabilization or cement stabilization? By prohibiting oil, might we not be encouraging something worse?
946.17(a)(1)
The wording, “…flagged for review where logging roads…” is not consistent with the wording in 946.5, “…flagged for review in the locations where logging roads…”.
Why should plan submittal and notice of intent requirements be so much more cumbersome and complex for THPs with intent to convert? Is this just another intentional obstacle to conversions?
946.19(c) distances to nearest watercourses
All Classes? Even unnamed Class III and Class IV watercourses? Why? And why only for THPs with intent to convert?
946.20 Mapping Requirements
References to 946.23 (1-4), (8), (9), and (11-13) lead nowhere. This is apparently a numbering error, and the reference should apparently point to those same numbered paragraphs in 946.20. If this is true, then (2) doesn’t make sense. This rule applies only to THPs with intent to convert. How can there be boundaries of regeneration methods if no forest is to be regenerated?
(8) Who provides erosion hazard ratings?
(14) What tractor uses could occur that are beyond the limitations of the standard forest practice rules? Wouldn’t uses beyond the limitations of the rules be prohibited? What does this clause mean?
946.21 RPF responsibility
Why specify visits “at a periodicity of not less than two days in any seven day period”? This could mean visiting two days in a row, then being absent for 5 days. Wouldn’t it be clearer to simply specify a visit at least once every six days? And why make this requirement just for conversions? Why do harvests with intent to convert require more attention than identical harvests without intention to convert? Is this just another arbitrary obstacle to conversions?
946.23 Review Teams to be established.
Does putting our Planning Department representative on the review team make these permits discretionary when they would otherwise be ministerial? Does this expose these landowners and the County to more Sierra Club legal mischief? I notice that this rule applies to all THPs, not just those with intent to convert.
946.24
Apparently, the same harvest methods could be approved under a Review Period Waiver without meeting all these conditions if there were no intent to convert. Why make it harder for THPs with intent to convert? Is that the real agenda?
Solid, sensible answers to all these questions will be greatly appreciated. A public airing of these concerns in a new public hearing seems entirely appropriate. Thank you for reading and understanding my concerns. - George Bachich
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