Updated Groundwater Basin Priorities May Bring Regulation to North Bay Wine Counties

The 2014 Sustainable Groundwater Management Act (SGMA) requires every groundwater basin in California ranked medium and high priority to be managed by one of more Groundwater Sustainability Agencies (GSAs) pursuant to an adopted Groundwater Sustainability Plan (GSP) or alternative plan.  The California Department of Water Resources (DWR) issued the initial groundwater basin prioritization in 2014.  In May 2018, DWR released draft updated basin priorities using revised basin boundaries, revised methodologies, and updated datasets and information, including well location, groundwater production, salinity intrusion and cropping information.  For the first time, the basin prioritization will consider whether groundwater production could adversely impact local habitats and local streamflows.

DWR will accept public comments on the draft 2018 SGMA Basin Prioritization Process and Results report through July 18, 2018.  DWR anticipates adopting the final prioritization in mid-October.  A useful web mapping program shows the 2018 draft prioritization, proposed changes from the 2014 to 2018 prioritization, and information specific to each basin.

DWR proposes upgrading 14 basins from low to medium or high priority, which would require election of GSAs within two years and adoption of GMPs within five years of final adoption of the revised priorities.  Five of the 14 basins include winegrape growing regions dependent on groundwater:

  • Alexander Valley, Alexander Area Subbasin in Sonoma County, which includes much of the Alexander Valley AVA and portions of the Chalk Hill AVA;
  • Santa Rosa Valley, Healdsburg Area Subbasin in Sonoma County, which includes portions of the Dry Creek Valley and Russian River Valley AVAs;
  • Wilson Grove Formation Highlands Basin in Sonoma County, which includes portions of the Green Valley, Russian River Valley, and Sonoma Coast AVAs;
  • Napa-Sonoma Valley, Napa-Sonoma Lowlands Subbasin in Napa County, which includes a portion of the Carneros AVA; and
  • Upper Lake Valley Basin in Lake County, which includes a portion of the Clear Lake AVA at the north end of Clear Lake.

Growers in these five basins are likely to experience very different compliance obligations if current SMGA compliance efforts for 2014-ranked basins in those counties are any guide.  Lake County has proposed that its existing groundwater management plan serve as an alternative to preparing new GSPs for the ranked medium priority basins in the County.  Napa County has proposed that no GSP is required for the one medium priority basin within the County pursuant to an analysis that the basin has operated within its sustainable yield.  In Sonoma County, the County, cities and other local agencies have formed new GSAs for each of the three medium priority basins within the County, and are evaluating costly fees to fund groundwater studies and preparation of GSPs.

DP&F will continue to track and report on SGMA developments affecting the wine industry and other clients.

For more information on this and other water issues, please contact Peter J. Kiel.

Napa River and Sonoma Creek Vineyard General Permit

In July 2017, the San Francisco Bay Regional Water Quality Control Board adopted waste discharge requirements (a “General Permit”) to regulate vineyards parcels of 5 acres or more in the Napa River and Sonoma Creek watersheds to monitor vineyard sediment, pesticide and nutrient discharges.

General enrollment is due by July 31, 2018. The Regional board extended the enrollment period to July 31, 2019 for vineyards impacted by the October 2017 North Bay wildfires. The Regional Water Board’s active map enables growers to locate their property, determine whether they are subject to the General Permit, and determine the applicable deadline.

General Permit applicants are required to comply with the Performance Standards of Discharge, which define the level of pollutant discharge control. Vineyard parcels with average slope equal to or exceeding 5 percent are subject to additional performance control standards. Standards and Best Managements Practices are summarized here.

The Farm Plan Requirement

Existing vineyards are required to complete a verified farm plan by July 31, 2020. For existing vineyards located within the perimeter of the North Bay wildfires, the deadline is extended to July 31, 2021.

For new vineyards planted subsequent to General Permit adoption, the verified farm plan must be completed either by July 31, 2020 or by the date the vineyard is planted, whichever is later.  The farm plan certifies that all performance standards for sediment and storm runoff control will be complied with.

Approved Third-Party Programs and Their Role

The Regional Water Board approved four Third-Party programs that can assist growers to draft and verify their farm plans, ensure compliance with the General Permit and file the farm plan: the California Land and Stewardship Institute’s Fish Friendly Farming Program, the Napa County Resource Conservation District’s Landsmart Program, the Sonoma Resource Conservation District’s Landsmart Program and the California Sustainable Wine growing Alliance.

Growers electing to develop a farm plan independently without Third Party Program verification must submit their farm plans to the Regional Board for review and approval.

Permit and Reporting Processes

The General Permit provides three tiers of reporting and fees. Tier 1 enrollees who have a verified farm plan and meet all applicable discharge and the stream and riparian habitat standards benefit from reduced monitoring and reporting, and lower permit fees. Tier 2 enrollees are growers who are working with a Third-Party Program to develop a verified farm plan but that have not met all applicable performance standards benefit from reduced permit fees. Growers developing a farm plan independent of Third Party Program verification are Tier 3.  Tier 2 and 3 enrollees must submit an annual compliance form. They will also generally be required to complete additional water quality monitoring to asses streambed sediment conditions as well as compliance with BMPs.

What Can I Do Now?

The enrollment period opened on April 30, 2018. Prior to filing their verified farm plan and permit application, Growers must first file a Notice of Intent to comply with the General Permit. Growers The Regional Board has published instructions for completing and submitting the Notice of Intent online.

The Regional Board will hold an informational meeting on Tuesday, May 29, from 1:00 to 2:30 at the Yountville Community Center, located 6516 Washington Street in Yountville, California to provide additional filing and practical information regarding the General Permit process.

For more information on this and other water law based issues, please contact Peter J. Kiel.

CEB Wine Law Forum (Nov. 5-6 in Paso Robles)

Thursday and Friday, November 5th & 6th
Paso Robles, California

Three DP&F attorneys will be speaking at the annual CEB Wine Law Forum,™  taking place on November 5th and 6th in Paso Robles, California.  The Forum, sponsored by the International Wine Law Association and moderated by DPF’s Richard Mendelson,  will address Water Regulation, the AVA System, and Employment Law.  Mr. Mendelson will speak on the history and future of the U.S. AVA system, and DPF Director Carol Ritter will lead a panel on protecting and promoting AVAs.  DPF co-managing partner Greg Walsh will lead a panel discussion on employment law issues faced by winery and vineyard owners.

The event is sponsored by the International Wine Law Association and Napa Valley Vintners.

Additional information and on-line registration can be found on the CEB website.

AGENDA

Water and Wine—Thursday Morning

Water and Wine—California
Water and Wine—Paso Robles

Appellation Designations—Thursday Afternoon

35 Years Later—An Examination of the AVA System
Promoting and Protecting AVAs

Employment Law Matters—Friday Morning

Challenges of a Seasonal Workforce
Top 5 Wage & Hour Issues Facing Winery and Vineyard Owners

9 hours MCLE Credit

 

Groundwater Legislation Not Sinking

As California’s severe drought deepens legislation moves upstream in Sacramento regarding groundwater.  Historically the State of California has not had jurisdiction over groundwater, but with serious groundwater depletion issues in most of the key agricultural regions exacerbated by this historic drought, the current is now sweeping us all toward State oversight of this precious resource.  Senate Bill 1168 and similar Assembly Bill 1739 are both out of committee now and headed after recess to the floor of the legislature in the near future.  Both bills focus on local or regional groundwater monitoring and regulation, which will require greater groundwater use reporting by pumpers.  Regardless of the politics of groundwater regulation, here is a link to some thought provoking reports on California’s groundwater situation. We’ll keep you apprised of the legislature’s consideration of these Bills and how what is ultimately passed may affect Wine Country’s vineyards.

Groundwater Legislation Not Sinking

As California’s severe drought deepens legislation moves upstream in Sacramento regarding groundwater.  Historically the State of California has not had jurisdiction over groundwater, but with serious groundwater depletion issues in most of the key agricultural regions exacerbated by this historic drought, the current is now sweeping us all toward State oversight of this precious resource.  Senate Bill 1168 and similar Assembly Bill 1739 are both out of committee now and headed after recess to the floor of the legislature in the near future.  Both bills focus on local or regional groundwater monitoring and regulation, which will require greater groundwater use reporting by pumpers.  Regardless of the politics of groundwater regulation, here is a link to some thought provoking reports on California’s groundwater situation.  We’ll keep you apprised of the legislature’s consideration of these Bills and how what is ultimately passed may affect Wine Country’s vineyards.

Aggressive State Stream Diversion Enforcement Comes to Napa River Watershed

A number of property owners in Napa County, including wineries, recently have received a form letter from the State Water Resources Control Board entitled, “NOTICE OF POTENTIAL UNAUTHORIZED DIVERSION AND USE OF WATER, AND FAILURE TO FILE A STATEMENT OF WATER DIVERSION AND USE FOR DIVERSION OF WATER IN NAPA COUNTY.”
The letter states that the Board has identified a reservoir on the subject property that appears to be on a “class I, class II, or class III stream,” but has determined that there is no record of a permit authorizing diversions from the stream into the reservoir.  (A class I stream is a stream where fish are always or seasonally present, a class II stream is a stream where fish are not present but certain aquatic species exist (frogs, salamanders, benthic insects), a class III stream does not support aquatic life.)  The notice spells out the various civil fines for unauthorized stream diversions ($1,000 for failure to file a statement of diversion, plus $500 per day the violation continues if a statement is not filed within 30 days of Board notice), and gives the property owner three options:
1.         Prove that you no longer own the property, or that there is in fact no reservoir on the property;
2.         Prove that you indeed do have the appropriate permit or water right authorizing the diversion, or that you have been filling the reservoir with purchased water, groundwater, or other water not subject to the Board’s jurisdiction; or
3.         Take corrective action within 60 days.
What is “corrective action?”  The Board states that, “[n]ormally, an unauthorized diversion can be stopped, removed, rendered incapable of storing water, or legalized through the appropriative water right permit process.”   Unfortunately, if a property owner wishes to apply for a permit to legalize an existing unauthorized diversion, the Board’s “Policy for Maintaining Instream Flows” (see here:  www.waterboards.ca.gov/plans_policies/) states that after May 5, 2011, it will no longer approve water rights applications for reservoirs built with an onstream dam on streams designated as a class I or class II stream (see definitions above).
There is also the question of whether the Board is even correct in assuming that the subject reservoirs are the result of stream diversion.
The Board’s website may be found here:  www.waterboards.ca.gov/waterrights.
For more information or further assistance on land use or water law matters contact Dickenson, Peatman & Fogarty at [email protected]
Copyright Dickenson Peatman & Fogarty at www.lexvini.com