February 26, 2004
Board of Forestry and Fire Protection
Attn: Christopher Zimny
Regulations Coordinator
P.O. Box 944246
Sacramento , CA 94244-2460
Re: Notice of Proposed Rulemaking, Napa County Rules 2004
Dear Forestry Board Members,
Thank you for the opportunity to provide reasons why I believe that you should reject Napa County’s proposed Local Rules regulating timber harvesting. When this matter first came to the Board of Forestry last summer I sent you a July 28, 2003 letter detailing my objections to the proposed rules as presented at that time. Those comments are still germane and as important as ever to understanding what's happening in Napa County . I have enclosed a copy of that letter.
Given the recent ruling in Big Creek Lumber vs. County of Santa Cruz , you should immediately reject Napa County 's request for Local Rules because they are an illegal preemption of State Law.
Additional reasons for rejection of those Rules are summarized below:
- There is no substantive need. The small amount of timber operations in Napa County does not justify the expense.
- Napa County has not proven that the Forest Practice Act fails to adequately protect the natural resources of Napa County.
- Napa County has failed to demonstrate that its application is in conformity with Section 4516.5 of the California Forest Practice rules and that its request is "Necessary to protect needs and conditions of the county recommending them."
- Napa County has not proven that our soils, geography, topography, rainfall, hydrology along with our plant and animal species are unique from other counties, thus requiring special Local Rules.
- Passage of these Local Rules will increase the cost of a THP by up to 50%, and make it that much more difficult to manage our forests as a natural resource for the people of California.
- Napa County's request for Local Rules is in conflict with its General Plan.
- In addition to the applicants added expense, the real cost of these Rules should include fire fighting and environmental damage resulting from those fires.
Please consider the following:
I . During 2003 only two applications were filed for timber permits in Napa County . One is requesting permission for a 12-acre conversion and the other is requesting permission for a 32-acre conversion. During the last thirteen years only 38 permits have been granted in Napa County for either a THP or a TCP, with 6 applications pending. That averages out to less than 4 applications per year. The total acreage is equally de minimus: during those thirteen years only 500 acres have undergone conversion and 550 acres have been thinned. Napa County is comprised of 525,000 acres.
As all can see, the amount of acreage in Napa County involved with timber harvesting is very small, and I find it hard to justify the time and expense that these rules are costing both the State of California and Napa County. (See enclosed Timber Harvests in Napa County )
II . Napa County has not presented a single, repeated or systemic failure of the FPA not adequately protecting Napa County . These Rules are not necessary to protect Napa County's environment during timber harvests as required under Section 4516.5 (b)(1): " Necessary to protect needs and conditions of the county recommending them."
III. Napa County's request for Local Rules has no standing under Section 4516.5 of the California Practice Rules because their request is not there ". to take account of local needs." The genesis of their request is not born out of issues with inadequacies or failures of FPA in Napa County, but out of political gamesmanship to provide a "plan B" in an effort to defeat an onerous forest practice initiative, Measure O, which will be decided by the voters on March 2, the day preceding your hearing public testimony on these proposed rules.
Napa County is not coming to the Board of Forestry to correct systemic failures of "timber operations" that endanger the environment; Napa County is coming to the Board of Forestry and requesting "Local Rules" as a means of rebuffing political actions arising from a small group of environmental activists.
When Napa Supervisor Diane Dillon made her initial presentation to your sub-committee this past summer, she urged the sub-committee to hasten its work so that the rules would be in place for enactment on January 1, 2004 . These rules, along with the passage of the Streamside Setback Ordinance, would then provide an alternative for the citizens of Napa County to consider when they decide the fate of Measure O. Unfortunately, processing of the Local Rules took longer than Napa County expected and the Streamside Setback Ordinance became subject to the first successful referendum (now Measure P) in Napa County 's history. Its fate will also be decided on March 2.
Some background may be helpful to you. In the fall of 1999 the Sierra Club, using CEQA, successfully sued Napa County over the administration of issuing Erosion Control Permits.
In March 2002 a small group of five individuals broke away from the Napa Sierra Club to create the very restrictive Forest and Watershed Initiative. The authors of the initiative did so because:
"The initiative process is a direct result of the Board's ( Napa Supervisors) lack of action on both the WTF (Watershed Task Force) recommendations and a programmatic EIR that would address the cumulative impacts of forest conversions in the County. "
Beginning in the summer of 2002 the Napa County Board of Supervisors began the long and contentious process that resulted in the Streamside Setback Ordinance. From the September 24, 2002 Napa Valley Register:
"The commission (Napa County Planning Commission) initially planned to vote Wednesday on the stream setback ordinance.. The county has pushed the proposal since the initiative's (Measure O) signature drive began in the spring, which was widely viewed as an attempt to preempt the measure ."
In early June 2003 the Napa County Board of Supervisors passed and forwarded on 35 proposed Local Rules to the Board of Forestry. The June 11, 2003 NV Register:
"Napa County Supervisors on Tuesday began a major push to restrict logging and take momentum away from an activist-penned ballot initiative with similar aims."
On February 15, 2004 Harold Kelly (one of the five authors of Measure O) in a letter to the NV Register withdrew his endorsement of Measure O and now supports Measure P: " Once we had qualified our initiative, activities at the county level became very active ."
Five environmental activists hijacked the system by goading (blackmailing) Napa County into passing two ordinances that it might not otherwise have done. On March 2 nd Napa County citizens get to sort this mess out. Now (as of March 2) that Napa County 's necessity for Local Rules is over, don't allow the perversion of a legitimate and worthy process continue.
IV . Napa County has certainly provided details of the current state of the County's soils, topography, rainfall, vegetation, etc. but there is not one sentence that describes why or how any of these natural features are unique to Napa County . Description of current status is not the same as comparing and contrasting why a Napa County DWSW is in need of additional Rules and a Sonoma County DWSW does not. Based on this lack of specificity, if you accept any of these Local Rules for Napa County you might as well change the TPA and make those Rules applicable to all Counties.
V . I assume you are familiar with "The Buckeye Forest Project Report" but if you are not I believe it is has great value in reviewing the proposed Napa Local Rules issue. The every increasing cost of THPs is mandating forestry decisions that are not being made in the best interests of the forest. Small acreage must be increased in size to justify permitting expense. Large trees that once may have been left now must be harvested to increase revenue. "Light-touch" harvesting methods must give way to more heavy-handed but efficient methods. "We have been saying for many years that timber harvest plans cost too much money and they are putting good stewards out of business," says Pam Giacomini of the California Farm Bureau Federation ( Ag Alert , January 21, 2004 ). If adopted, these Rules will increase the cost of a THP by up to a 50%.
Table 2 on page 13 of the INITIAL STATEMENT OF REASONS outlines what Jones and Stokes believes what will be the additional cost to the applicant. Unfortunately, their estimate is both undervalued and incomplete. First, Jones and Stokes should have had an independent firm estimate these expenses. Jones and Stokes has a conflict of interest in presenting complete and accurate costs so that their client, Napa County , can achieve their desired results.
Second, the amounts presented in the table reflect a middle of the road amount as presented later in the same document under " EVIDENCE SUPPORTING FINDING OF NO SIGNIFICANT ADVERSE ECONOMIC IMPACT ON ANY BUSINESS ". LTO expenses were left off their table as though the applicant wasn't going to ultimately pay for those increase as well. My estimate is a model using $75 per hour, Jones and Stokes' highest estimated number of hours required and their per acre expenses using the 13-year average of 28 acres for a THP and all LTO expenses. Thus, Napa County 's Local Rules will cost an applicant an additional $19,225 per plan. Several of the Rules true cost will take that total even higher. For example, Rule 946.24 requires the RPF to be on site two days out of every seven days until a notice of completion is approved by the Director. No RPF lives in Napa County so the drive time will be from Sonoma , Lake or even Mendocino Counties . The following is my revised table 2 comparing Jones and Stokes with my estimates.
Estimated Cost of implementing Napa 's Local Rules:
| Rule # | Jones & Stokes | My estimate |
| 946.2 | $400 | $450 |
| 946.3 | $400 | $450 |
| 946.4 | 0 | $2,100 "1hr/acre/affected plan @$75/hr" |
| 946.5 | 0 | $2,000 "$200 per day of log hauling" estimate 28 acres = 10 days of log hauling |
| 946.6 | $100 | $150 |
| 946.7 | $300 | $300 |
| 946.8 | 0 | $600 |
| 946.10 | $500 | $750 |
| 946.11 | $1,600 | $2,100 |
| 946.12 | $300 | ? undeterminable to plan, loss of harvestable trees |
| 946.13 | $1,000 | $1,000 |
| 946.14 | $300 | $300 |
| 946.15 | 0 | $700 |
| 946.16 | $300 | $300 |
| 946.17 | $300 | $300 maybe much more |
| 946.18 | $1,000 | $1,300 |
| 946.19 | 0 | ? undeterminable to plan, potentially very expensive |
| 946.20 | $800 | $800 |
| 946.21 | $300 | $300 |
| 946.22 | $300 | $300 |
| 946.23 | $300 | $300 |
| 946.24 | $4,000 | $4,500 Could be as high as $16,000 |
| 946.26 | $100 | $225 |
| ================== | ================= | |
| $11,000 | $19,225 |
Napa County would have us believe that the additional expenses "are minor in comparison to land values and potential economic returns associated with post-harvest and conversion land use and associated activities." Unfortunately, these rules are not specific to just land conversions to vineyards or homesites. How can any one assert that increases of 25% to 50% in permitting fees is "minor."
VI. The Local Rules proposed by Napa County are quite obviously inconsistent and in conflict with several of the following General Plan goals and need no additional comment from me:
From the NAPA COUNTY GENERAL PLAN : (underline and bolding added)
Under LAND USE PLANNING FOR THE YEAR 2000 :
Goal 1 - " TO PLAN FOR AGRICULTURE AND RELATED ACTIVITIES AS THE PRIMARY LAND USES IN NAPA COUNTY AND CONCENTRATE URBAN USES IN THE COUNTY'S EXISITING CITIES AND URBAN AREAS."
Under OPEN SPACE AND WATERSHED POLICIES:
Section 1.4: FIRE MANAGEMENT -"The County will develop a controlled-burn program for managing fire hazardous areas, to reduce wildfire hazard, improve watershed capabilities, promote wildlife habitat diversification, and improve grazing"
Under AGRICULTURAL POLICIES :
Section 3.1 - " AGRICULTURE-ECONOMIC ROLE - The County will enact and enforce regulations which will retain agriculture as a major source of income and employment in Napa County .
Section 3.5 - AGRICULTURAL -Urban Relationships - The County will develop planning concepts and zoning standards designed to minimize conflicts arising from encroachment of urban uses into agricultural areas .
Section 3.12 RIGHT-TO-FARM - The County will affirm and protect the right of agriculture operators in designated agricultural areas to continue their agricultural practices, even though established urban uses in the general area may foster complaints against those agricultural practices . The existence of a "Right-To-Farm" policy will be indicated on all parcel maps approved for locations in or adjacent to designated agricultural areas.
Section 3.15 FORESTRY - The County will encourage active forest management practices including timely harvesting to preserve existing forests. The county will encourage timber plantations for fuel wood production.
VII. The recent forest fires in Southern California are ample evidence of what happens when forests are not managed well. The forests on the western hills of Napa County have not burned in over 80 years, have huge fuel loads and are a real threat to the public health, safety and welfare of those of us who live and work there, as well as those who will eventually fight those fires. As public policy, these proposed Local Rules are typical of the antiquated thinking which has led to many of the recent Western forest fires which have been so catastrophic to our environment, our property and to human life. It's not "if" a forest fire will burn in our area, it's only a question of "when" that fire will occur. Acceptance of these Rules will incrementally make it that much more difficult for timber owners to manage and care for their forest, which in turn exacerbates the fire danger.
The following are likely results if you approve any, or all, of these Rules:
1. Increased cost to manage our forests.
2. Decreased incentives to engage in proper forest management.
3. Increased incentive to continue poor management of our forests.
4. Increased fuel loads.
5. Increased risk of forest disease and pests.
6. Loss of a natural resource needed by the people of California .
7. Increased likelihood of a catastrophic forest fire resulting in:
a) Loss of timber as a natural resource.
b) Increased soil erosion.
c) Decreased wildlife habitat.
d) Decreased wildlife.
Thank you for your consideration.
Stuart Smith
Smith-Madrone
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