The Great Frost Protection Conspiracy
by Mark Scaramella, July 7, 2011
They were all there at last week's meeting of the supervisors, these noble sons of the soil, and they were all thirsty for what's left of Mendocino County's battered, fish-free rivers and streams.
The grape juggernaut is in an absolute panic that their unimpeded access to public water might in the slightest be moderated.
Fish smish, they say. We want it all, and we want it all now (or at least whenever we want it), as Harry Merlo of Louisiana-Pacific famously stated corporate timber's clearcut cash-in of Mendocino County's forests two decades ago.
The Farm Bureau, the Mendocino Winegrape and Wine Commission, the Russian River Flood Control District, and their inland allies on the Board of Supervisors — Brown, McCowen and Pinches, unleashed a volley of abuse on the State Water Board and the National Marine Fisheries Service at last Tuesday’s Board of Supervisors meeting.
But no one from the targeted regulatory agencies was on-hand to respond as the Wine People piled on with charges of conspiracy, collusion, duplicity, fraud, secret meetings, backdoor deliberations, manipulating and exaggerating data, deception, lack of science, bad faith, monitoring for the sake of monitoring, hiding evidence, pitting neighbor against neighbor, ignoring local efforts, stonewalling, blackmail and vindictiveness.
And they were just getting started.
What unleashed these torrents of abuse?
This simple draft regulation by the State Water Board to maintain minimum flows for fish in the Russian River:
“§740 Russian River, Special.
(a) After [date], any diversion of water from the Russian River stream system, including the pumping of closely connected groundwater, for purposes of frost protection between March 15 and June 1 that the board has determined to be significant shall be considered unreasonable and a violation of Water Code section 100, unless the water is diverted pursuant to a board approved water demand management program. Any such water demand management program shall ensure that the instantaneous cumulative diversion rate does not result in a reduction in stream flow that is harmful to anadromous fish. The program shall be administered by an individual or governing body capable of resolving disputes and ensuring that the goals of the program are met. In addition, the program shall include, for the March 15 through June 1 period, monitoring and reporting to the individual or governing body responsible for administering the program, and to the board of (1) instantaneous water diversion rates for each water diversion that the board has determined to be significant and (2) flows in the Russian River mainstem and any tributaries that support anadromous fish. The program shall provide for the transmission of monitoring data, in an appropriate format, not less than hourly, to an internet site accessible to the board.
(b) For purposes of this section, any diversion from the Russian River stream system, including the pumping of closely connected groundwater, shall be considered significant unless the diverter can establish to the satisfaction of the board that the diversion will have a negligible effect on flows in any portion of the Russian River stream system that provides habitat for anadromous fish.
(c) For purposes of this section, groundwater shall be considered closely connected groundwater if it is pumped from areas described as subterranean flow or mapped active stream channels and associated alluvial deposits on maps prepared by Stetson Engineers, Inc. dated February 22, March 8, or March 9, 2008, unless the person pumping the groundwater can demonstrate to the satisfaction of the board that the groundwater is not hydraulically connected to any surface stream within the Russian River stream system.
(d) Any water demand management program developed pursuant to this section shall be submitted to the board for review and approval at least thirty days before the date when approval is requested. The board may require changes to the water demand management program at any time.
(e) Compliance with this section shall constitute a condition of all water right permits and licenses that authorize the diversion of water from the Russian River stream system. The board will retain jurisdiction to revise terms and conditions of all frost protection permits should future conditions warrant.”
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Anything in there a reasonable person would object to?
Anything in there not already in place at grape central, Napa County? Specifically, the Napa River Watermaster program?
But what we had was an array of Mendo Wine People teeing off on a draft document two years in preparation with plenty of prior opportunity for the Wine People to comment.
No one referred to the dread document, no one quoted from it. None of the Wine Gang blunderbusses said which parts of it were the product of the Frost Protection Conspiracy.
In fact, the document itself was not in the room. No one waved a copy of it. No one stomped on it. Everyone was winging it.
So why were the Wine People so upset?
They were upset by a selection of documents obtained by the Russian River Flood Control District via a Freedom of Information Act request to regulating agencies.
The Flood Control District paid over $1600 for the docs but most of what they got was copies of their own meeting minutes and other irrelevant blah-blah, that and some emails and letters from one agency staffer to another going back to 2009 concerning what to do about several reported fish-strandings which occurred in areas of the Russian River during heavy frost protection pumping periods in 2009 and 2010.
The agencies, as one of the offending emails neatly sums up, say that “the winegrape growers have had ample opportunity to self-identify the problem and take appropriate action. Yet unauthorized take [of endangered salmon] is occurring on a regular basis.”
The Wine People don't want to hear that.
The Farm Bureau and the Wine People argue that they’re already dealing with the fish kill problem by building more off-stream storage ponds and digging more off-stream wells so they won't be directly pumping river water from streams fish once thrived in. But they offer no proof that this will maintain minimum flows during frost protection pumping, just that it should help.
Instead of pinpointing alleged flaws in the proposed draft regulation (which would actually benefit the grape growers by reducing legal and administrative costs and simplifying rules for everybody), the Wine People assigned Russian River Flood Control District Manager Sean White to mine agency emails and prepare a highly edited and annotated compilation arguing that the proposed regulation is not needed because the Wine People insist the fish-stranding problem is exaggerated and they're already doing so much themselves to see that it doesn't re-occur.
White's carefully constructed, highly technical, and lengthy timeline was then included in the June 28 Board meeting packet by Supervisors Carre Brown (former Mendo Farm Bureau Director) and the Board’s primary vineyard advocate Supervisor John McCowen. Both supervisors represent the Russian River corridor where wine grapes have supplanted the proportionately varied agriculture enterprises dominant 40 years ago. Wine grape monoculture not only lines the Russian River from Potter Valley to Hopland in huge plantings, the industry's draw on the Russian River's finite water resources is huge and hugely unprecedented.
And unregulated. And that's the way the Wine People want it to stay.
White's compilation became the basis for an “inflammatory” (as described by Supervisor Dan Hamburg) draft letter to the State Water Board denouncing the agencies for working on a regulatory solution to fish-strandings while at the same time — “duplicity!” — saying they wanted to work “collaboratively” with the Wine People, all of which somehow added up to a conspiracy against jive juice, as industry critics often refer to grape-based hooch and the silly prose it generates.
To the Wine People, “working collaboratively” means that the regulatory agencies don’t regulate.
Working through full-time Wine Industry gofer Congressman Mike Thompson and his local “aide” Heidi Dickerson — the same Heidi Dickerson who writes weekly tributes to local Wine Celebrities in the Ukiah Daily Journal — Mendo Farm Bureau rep Devon Jones and La Ribera vineyard (Talmage) manager Al White (of Husch Vineyards in Philo) arranged a meeting with National Marine Fisheries Service Pacific Coast honcho Rodney McInnis in Long Beach last week to complain about the Frost Protection Conspiracy.
But nothing much came of it, further infuriating the Wine People and further fueling their conspiracy claims.
The draft letter prepared by Supervisors Brown and McCowen described by Hamburg as inflammatory was on the June 28 agenda; July 5th is the deadline for comments on the Water Board’s draft regulation.
The draft letter wasn’t in the Board packet for the public to review so we couldn't judge its flammability for ourselves. There was only a non-flammable statement that a letter was being prepared.
Nobody from any environmental group, any applicable agency, any fish advocacy group was present. (The general destructiveness of the industry is much more severe than the corporate timber depredations that inspired so much militant opposition 20 years ago. But there is very little organized resistance to the wine industry's multiple crimes, environmental and human.) The hour-long discussion of the proposed regulation of the public's water Tuesday was mostly an orchestrated parade of Wine People and the three supervisors cheering them on.
Supervisors Hamburg and Kendall Smith stood up for the fish.
Supervisor Hamburg wondered if denouncing the agencies in such accusatory terms was helpful.
Supervisor Smith wanted to know why the Wine People hadn’t addressed the draft regulation itself.
These mild objections from Hamburg and Smith were ignored and had no effect on the Wine People; they were in no mood to dial down their dire rhetoric.
When Supervisor McCowen tried to be somewhat diplomatic by inserting words like “apparently” in the letter, Supervisor John Pinches said he was already aware of how bad government agencies can be, declaring, “I don’t want to soften the letter one bit.”
Hamburg replied, “I don’t see a conspiracy. Yes, they collaborate. Agencies talk to each other. They do it all the time. Language goes from here then there and it happens every day in government. If you don’t like their conclusions, why say that it’s almost like criminal behavior? In a sense you’re saying that public servants are deliberately acting in contravention of the public interest.”
McCowen: “They do.”
Hamburg: “Well, I don’t agree.”
The Board voted 3-2 (Hamburg and Smith dissenting) to send the accusatory letter.
One of the key sources of the complaints from the Wine People was an out-of-context table inserted in the timeline by Sean White. It had been prepared by NMFS biologist David Hines back in 2009. It lists 14 fish stranding incidents in the upper Russian River mainstem during March and April of 2008. The table estimates the number of endangered fish that might have been killed if the 14 incidents had occurred over the entire upper Russian watershed, a kind of worst case scenario.
Russian River Flood Control District Manager White described the assumptions in the table as “unsupported variables” and “dubious calculations” which “exaggerates 10 fish in one spot on one day into 25,872 fish over numerous days and locations.”
Echoing this viewpoint after the Board vote, Supervisor McCowen, a legendary picker of nits and always quick to denounce views at odds with his as “lies” or otherwise arrived at dishonestly, insisted on adding a postscript to the discussion: “They’re actually fortunate that we didn’t put in another paragraph about how you fraudulently go from hand-documented fish based on…”
Hamburg interrupted: “Since when are you a fisheries biologist? Since when?”
Chair Smith suggested to McCowen, “You can compose another letter…”
Supervisor Brown interrupted: “Supervisor Hamburg, Dr. Pauli is [a fisheries biologist].” (Janet Pauli is one of the lead Frost Protection Conspiracy theorists, a stalwart member of the Farm Bureau, a large grape grower, wife of former State Farm Bureau President Bill Pauli, and Chair of the Inland Water and Power Commission which oversees the Mendo portion of the Eel River Diversion into her backyard. We could find no evidence that Ms. Pauli, a native of Potter Valley, whose family and Potter Valley's other ranchers have enjoyed free water for the last century courtesy of the Eel River Diversion, is a biologist or has a PhD in anything. If someone will produce her credentials we'd be happy to publish them.)
McCowen, after giving Hamburg an aggrieved look, continued, “Madam Chair, if I may, I am making a comment. I have the floor.”
Hamburg: “Excuse me, Supervisor.”
McCowen: “I believe they are fortunate we did not add a paragraph commenting on how you take a documented death of ten fish and you by an entire series of assumptions completely unsupported by any data of any kind or any science and you multiply that to 25,872 fish. If that isn’t proof of bad faith on the part of the agencies, I don’t know what is.”
That’s not the way we read Mr. Hines’ table, but McCowen may have a point. The table does seem like a stretch. But nobody from the agencies was on-hand to explain their calculations.
* * *
Three days later, on July 1, the Ukiah Daily Journal ran the following “Letter to the Editor” signed by Richard S. Schaeffers, manager of Beckstoffer Vineyards and President of the Mendocino Winegrape and Wine Commission”:
“Letter to UDJ Editor,
The following letter went out to agricultural interests in our county.
This is to notify you of the status of the State Water Resource Control Board proposed regulation. This is a serious regulation that would impact all of you that divert water for Frost Protection purposes in the Russian River Watershed.
The proposed regulation would declare all diversions for Frost Protection unreasonable; apply to all river and creek diversions — and even ground water wells; not properly recognize your water right priorities; ignore others who use water in the watershed for other purposes and result in significant compliance costs to you.
The latest draft of the regulation and all additional supporting documents as well as the comment letter can be found on the Commission website by going to www.mendowine.com. Tab-Commission Info, sub navigation bar Mendocino County Farm Bureau Updates.
The deadline to submit comments on the draft regulation is July 5, 2011. Comments on the proposed regulation and the Draft Environmental Impact Report are critical if we expect to make any changes to the regulation or challenge it on a legal basis. At the Mendocino Winegrape and Wine commission, we are working the California Farm Bureau & Mendocino County Farm Bureau who has developed an action plan and scope of work. The Mendocino County Farm Bureau has prepared an extensive comment letter on the draft regulation that outlines all the legal deficiencies analytical gaps and logical flaws in the draft regulation and its ‘supporting’ documentation.
The California Farm Bureau has established a grower-based fund to assist in the expenses required to submit comments by July 5 to cover legal expenses.
Both Mendocino and Sonoma County growers are in discussion to collaborate financially to match funds in order to defeat this regulation. Based on this estimate, the Russian River Frost Program has recommended that each grower consider the donation of $500 or $3/acre, whichever is greater. Every dollar counts. Please donate! Donations can be made to CFBF (California Farm Bureau Federation) with Russian River Frost Regulation in the memo line. [Then they give a mailing address in Sacramento.]
Please make sure to include your contact information (name, business, phone number, address and email) with your donation so that CFBF can have a thorough record of the donations received. Donations are not considered to be charitable donations. Please consult with your tax specialist to see if the donation may be deductible as an ordinary business expense. If you have any questions regarding the donation process, please contact (name, address of Farm Bureau attorney in Sacramento).”
* * *
This “letter” is nothing more than a highly charged fundraiser for one special interest group. Worse, it contains a number of unsubstantiated assertions intended to scare grape growers into sending in large sums of money to the Farm Bureau to try to stop a reasonable regulatory regimen.
Schaeffer’s assertion that “There is no viable alternative” to pumping millions of gallons of water from Mendocino County's rivers and streams to avoid frost damage is simply not true. There are several alternatives, all be them more difficult and costly than simply emptying your stretch of a local stream — tactical pruning after a frost, planting grapes in less frost prone areas, better timing of pumping while keeping an eye on actual streamflow, etc.
The proposed “regulation” is simply a reasonable strategy to maintain minimum flows for fish. The voluntary efforts by the growers to reduce the impact of pumping could easily be worked into such a flow management system. All that is required is that they demonstrate they’re not harming endangered fish when they pump. The flow-management system they can develop themselves would probably cost less than the amount of money being sought by the fear-mongering Farm Bureau to stop all regulation of this one pampered, heavily subsidized, self-obsessed and fundamentally frivolous industry.
At one point in the discussion Farm Bureau rep Devon Jones made an apparently inadvertent passing reference to the Wine People’s real complaint: “No one’s going to volunteer to put gages on their property to try and resolve the problem if a problem comes up they weren’t aware of.”
Of course, the water management system called for in the draft regulation would involve some level of gages and real-time monitoring (as is done on the Napa River now). This is what the Mendo Wine People are really afraid of and object to.
The Russian River Flood Control District is one of the key players in determining the flows out of Coyote Dam and, therefore, significantly influence how much water is available to grape growers to suck up before it goes on to the equivalently spoiled grape growers of Sonoma County, among the water's other downstream dependents. (Sonoma County owns more than 80% of the water in Lake Mendocino piled up behind Coyote Dam, and much of that water is diverted from the Eel River at Potter Valley.
The flows out of Coyote Dam have been a long-standing source of legal contention since Mendo technically only controls 20% of this outflow. The current ungaged, unmonitored arrangement allows the Wine People and the Flood Control District, both entities joined at the hip, to influence the amount of (ungaged) water released which they can then use in their ponds in an arrangement which conveniently benefits them much more than the fish.
Monitoring the Russian River and tributary flows, and the individual diversions with real-time gages would mean that the agencies and the public would know who’s really getting how much water and when.
And that’s what the Mendocino County Wine People will resist to their last bottle of over-priced chardonnay.