When it comes to environmental issues, it seems that acronyms are essential to the discussion. So be warned that this blog is full of them.
In many parts of the country, environmental agencies are increasing the amount of regulations regarding Total Maximum Daily Loads (“TMDLs”) of waste that can be discharged to streams or rivers. There is an increasing focus on agricultural land uses. The type of regulated “waste” can be residues of pesticides, sediment and organic material that can reach water.
In Napa and Sonoma, the San Francisco Bay Regional Water Quality Control Board has taken the next step and now designated TMDLs for most vineyards in Napa and Sonoma. The Board determined that both the Napa River and Sonoma Creek, as well as their tributaries had been impacted by particulates. This determination lead to proposal of the first, and what is likely not to be the last, vineyard TMDLs.
The story starts like this (with an acronyms warning). In California, there are nine regional Water Quality Boards. These Boards place waste discharge requirements, called WDRs, on discharges affecting water. These WDRs are most often in response to persons who file Reports of Waste Discharge (“ROWD”), required when persons discharge waste that may affect water quality. In agricultural operations, too much sediment or too high a level of pesticides runoff reaching a creek can be considered a “waste discharge” which must be reported to the Regional Water Quality Board
In 2008, the San Francisco Bay Regional Water Quality Control Board set numbers for TMDLs that addressed vineyard discharges to streams and rivers – pesticides, agricultural chemicals and sediment. The Board then developed its first program to regulate the discharges from Napa and Sonoma vineyards. The newly proposed regulations have been published and comments can be made before February 1. Public hearings are scheduled for March.
The proposed regulations apply to “Vineyard Properties” and will create a program that will run for 5 years. During that 5 year period, the Board will evaluate the program and its effectiveness.
These Vineyard Properties are generally divided into three groups.
- If a Vineyard Property is less than 5 acres, with stream setbacks, you fit within the category of persons who may file a Notice of Non-applicability, stating TMDL regulations do not apply to you.
- If a Vineyard Property is 5 acres or more, with parcels totaling 40 acres or more on a 5% slope or less OR a total of 20 acres or more with over 5% slope, you may apply for a Conditional Waiver.
- If you have more than one acre on slopes of 30% or more AND you have “highly erosive soils,” you must file a ROWD.
Under the proposal, there are administrative requirements that each of these three groups should follow. Several examples include:
- If you qualify for a Conditional Waiver, you must first file a Notice of Intent to comply with the waiver. Then, you must prepare a “farm plan,” describing the agricultural lands and vineyard management practices. These plans also include a strategy to add new management practices to meet requirements.
- If you have high slopes and highly erosive soils, you must submit a ROWD to the Board and you will likely have more requirements placed on you.
- If the regulations do not apply to you, you still must provide a Notice of Non-Applicability.
There are a number of questions regarding the proposal. For one, the proposal does not define exactly what is meant by “parcels” and whether the term includes adjoining property owned by others or used for non-agricultural activities. It appears that the Board’s intent is to include operations which are managed as one single vineyard facility and count all of the acres regardless of who owns them. However, there is no extensive definition of what makes a facility a single facility and whether or not non-agricultural or non-wine growing areas are to be included in the acreage count.
Also, there is no detail on how to calculate the percentage of slope. Can you consider any differences in agricultural practices designed to fit highly sloped areas? In the “real world,” vineyards do not have a uniform slope.
Additionally, the proposal does not address in detail what parts of the conditional waivers or farm plans will be reviewed by the Board and what options or penalties will be assessed if vineyards either are incorrect in their initial decisions or if the plans are determined to be insufficient. Keep in mind that the “farm plan” is to be kept on site and may be reviewed by the Board upon request. What happens if the reviewer does not believe it is sufficient.
The Board has estimated that the new proposal will affect over 85% of the vineyards in Napa and Sonoma. The other 15% is regulated by the North Coast Regional Water Quality Board – and that Board is beginning to consider similar regulations.
The proposed Napa and Sonoma requirements and definitions are very technical and require close review. The practical effect for many who already participate in programs like the Napa Green Certified Winery Program only need to make new filings, pay additional annual fees and annual reporting. But for others, added rules, forms, reports and expenses will result. More information is available on the Board’s proposal from its website or from our firm.