Vineyard Erosion Control Regulations

In March 2013, after several years in development, the draft Conditional Waiver of Waste Discharge Requirements for Vineyards in the Napa River and Sonoma Creek watersheds was withdrawn by the San Francisco Bay Regional Water Quality Control Board (RWQCB). The decision was made in response to a firestorm of outrage from the environmental group Living Rivers, as well as attorneys hired by a posse of Napa wine industry trade groups that included Napa County Farm Bureau, Napa Valley Grapegrowers, Napa Valley Vintners and Winegrowers of Napa County. Apparently, the waiver was just too much for anybody to handle.

The RWQCBs (there are nine of them) have three increasingly burdensome regulatory frameworks that can apply to dischargers contributing pollution to an impaired water body. The Federal Clean Water Act requires each state to assess nonpoint source pollution issues, identify which water bodies are impaired and the sources of the pollution causing impairment of beneficial uses, and implement management programs to control them. Nonpoint source pollution is defined as any source of water pollution that doesn’t emanate from a discrete discharge point (like the end of a pipe). When a water body is identified as being impaired, it’s placed on the Federal 303-d list, and the state is then charged with establishing numerical limits (Total Maximum Daily Loads, or TMDLs) on the pollutant source in question at appropriate locations within the water body. Then the RWQCBs are tasked with enforcing the TMDLs.

In this context, a vineyard operator in the Napa River or Sonoma Creek watershed becomes a discharger the second one raindrop of stormwater runoff carrying sediment leaves his or her property.

The least burdensome approach is the Waiver of Waste Discharge Requirements (WDRs), which the winegrowers rejected. This would have required farm water quality plans and some shared monitoring responsibilities. Over the past few years, as the local waiver was developed, the winegrowing industry got many concessions from RWQCB. The Farm Bureau and Fish Free Farming/California Land Stewardship Institute offered to do anybody’s farm plan for free. In Napa, the National Resources Conservation Service (NRCS) was going to work with RWQCB to develop acceptable sampling/chemical monitoring protocols for the Napa River to comply with this waiver. That would have covered everything, but nevertheless, the winegrowers rejected it. So the TMDL process will proceed, and RWQCB will move on to the next tool in its arsenal.

The next approach to regulating dischargers in an impaired watershed is to issue General Waste Discharge Requirements, and this is the approach RWQCB is now going to take with vineyard operations in the Napa River and Sonoma Creek watersheds.

Normally, General WDR permits are reserved for operations perceived as more polluting than a farm. Sewer systems, operations disposing of biosolids on land, irrigating landscaping with recycled municipal wastewater, operating a winery wastewater system or a concentrated animal feedlot are all examples of activities that are now regulated with General WDRs. Compliance is more expensive and individual dischargers (growers) face increased liability.

Filing for coverage isn’t a guarantee RWQCB will decide a general WDR order is appropriate for your vineyard. On a case-by-case basis, RWQCB will decide whether a property is eligible.

If the preliminary determination indicates coverage under general WDRs is appropriate, the discharger will be required to publish a description of the project in a newspaper of general circulation in the area of the proposed discharge, provide proof of such posting, distribute copies of the notice to nearby residences or businesses, and provide proof of such distribution.

General WDRs nearly always contain effluent limitations (a numerical measurement of a water quality parameter that can impair the beneficial uses of the water body). Effluent limitations require lab testing the stormwater runoff for chemical constituents and reporting the results to RWQCB, which can then assess financial penalties if the numbers are bad.

General WDRs usually include the requirement that the discharger promptly report to RWQCB any material change in the character, location or volume of discharge. If you make improvements, you need to fill RWQCB in on everything.

And, to top it all off, if RWQCB doesn’t think your vineyard fits the general WDR permit (think very large plantings, very steep plantings or plantings with long river frontage), you’ll need to get an individual, site-specific WDR order. This is how industrial dischargers like wastewater treatment plants, chemical manufacturing plants and nuclear power plants are regulated. In this case, the discharger (vineyard operator) would need to file a Report of Waste Discharge (RWD) that explicitly lays out the entire operation—and which would be public record. Filing an RWD is an expensive and time-consuming process.

So maybe congratulations are in order for delaying RWQCB regulation of vineyards in these two watersheds. But if you thought a WDR waiver program was burdensome, you ain’t seen nothin’ yet!