Frost Protection Regulation

RUSSIAN RIVER WATERSHED

In April 2009 the State Water Resources Control Board (State Water Board or Board) held a workshop to receive information regarding the need for and the effect of water diversions for purposes of frost protection of crops in Mendocino and Sonoma Counties. The workshop was held in response to a letter the Deputy Director for Water Rights received on February 27, 2009 from the Santa Rosa Office of the National Oceanic and Atmospheric Administration Fisheries Service (NOAA Fisheries Service) expressing concern over the threat to federally threatened and endangered salmonids of frost protection irrigation by vineyard owners in the Russian River watershed. In the letter, NOAA Fisheries Service requested that the State Water Board take immediate action to protect salmonids in the Russian River watershed, e.g., by implementing emergency regulations. At follow-up workshops in November 2009 and January 2010, the State Water Board received information on the status of Russian River salmonids, the impact of water diversions, voluntary actions to address impacts, and grower issues and options related to frost events.

At the January 2010 workshop the Board instructed staff to pursue regulations though the formal rulemaking process. Staff presented draft regulations at the January 19, 2010 workshop, which were revised for discussion at the March 30, 2010 State Water Board meeting. On April 6, 2011, prior to the initiation of the formal rulemaking process, the State Water Board held another workshop and made available for public comment a revised draft of the regulation and draft rulemaking documents.

On May 20, 2011, the State Water Board initiated the formal rulemaking process, and made available for public comment revised drafts of the proposed regulation and Initial Statement of Reasons. The State Water Board also made available a Draft Environmental Impact Report for the proposed regulation in order to comply with the California Environmental Quality Act. The written comment deadline was noon on July 5, 2011. On September 1, 2011, the State Water Board posted revisions to the draft documents and new documents for the rulemaking record. The State Water Board accepted written comments on the revisions and new material until Noon on September 16, 2011. The State Water Board adopted the proposed regulation and certified the Environmental Impact Report during a hearing held on September 20, 2011. The Final Rulemaking Package was filed with the Office of Administrative Law (OAL) on November 15, 2011. At the request of OAL, the State Water Board made non-substantive, largely typographical corrections to the text of the regulation. OAL approved the regulation on December 29, 2011. The regulation became effective on December 29, 2011, when OAL filed it with the Secretary of State.

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2011 Activities

OAL Notice of Approval

Final Regulation Approved by OAL

Supplement to the Final Statement of Reasons

Adopted Regulation and Materials Submitted to OAL

• Request for Early Effective Date
• Adopted Regulation
• Final Resolution (adopted September 20, 2011)
• Final Statement of Reasons
• Updated Informative Digest
• Notice of Determination (filed with the State Clearinghouse on September 27, 2011)

A business or person submitting a comment to a proposed regulation or proposed amendment or repeal of a regulation or any person who specifically requests it has the right to request a copy of the Final Statement of Reasons (FSOR). Upon its completion, the FSOR will be available and copies may be requested from State Water Board contact persons, or may be obtained in electronic form from this webpage.

• Letter from David Rose, Office of Chief Counsel to Nicholas A. Jacobs, Somach Simmons and Dunn
• Letter from Nicholas A. Jacobs, Somach Simmons and Dunn to Michael Lauffer, Office of Chief Counsel
• Revised Reporter’s Transcript of September 20, 2011 Public Hearing
• Responses to Environmental Comments Received on Changes to Proposed Regulation Noticed on September 1, 2011
• Public Comments Received - Deadline was September 16, 2011
• Notice of Opportunity for Comment (posted 9/1/11)  
• Revised Draft Russian River Frost Protection Regulation (posted 9/1/11)
• Proposed Board Resolution (posted 9/1/11)
• Revised Draft Environmental Impact Report, without figures (posted 9/1/11)
  • Revised Appendix D - Approved STD Form 399 and Attachment : Economic and Fiscal Impacts of the Proposed Russian River Frost Regulation
  • New Appendix E - Revised Draft Russian River Frost Protection Regulation
• Responses to Comments on the May 2011 Draft Russian River Frost Protection Regulation (posted 9/1/11)
• Submitted Public Comments regarding Russian River Frost Regulation {comment deadline July 5, 2011)
• Notice of Adoption Hearing and Notice of Availability of Documents
• Notice of Proposed Rulemaking
• Fact Sheet - Proposed Russian River Frost Protection Regulation
• Revised Russian River Frost Protection Regulation (revisions made after April 6, 2011 are noted)
• Revised Initial Statement of Reasons (revisions made after April 6, 2011 are noted)
• Draft Environmental Impact Report (Figure 4-5b corrected June 14, 2011)
• Draft Environmental Impact Report (39MB) (uploaded May 20, 2011)
  • Appendix A - Notice of Preparation
  • Appendix B - Special-Status Plants Occurring in Riparian, Freshwater Marsh, and Vegetated Lacustrine Habitats
  • Appendix C - Special-Status Animals Occurring in Riparian, Freshwater Marsh, and Vegetated Lacustrine Habitats
  • Appendix D - STD Form 399 and Attachment : Economic and Fiscal Impacts of the Proposed Russian River Frost Regulation
• Draft Environmental Impact Report without Figures
  • Figure 4-5b (corrected June 14, 2011)
• Figures: 3-1  |  4-1  |  4-2  |  4-3  |  4-4  |  4-5a  |  4-5b  (uploaded May 20, 2011) |  4-5c  |  4-6  |  4-7  |  6-1
• Received May 4, 2011 – NOAA National Marine Fisheries – Biological Context of the Spring 2008 De-Watering Event in the Upper Mainstream of the Russian River, report dated March 2011
• April 6, 2011 Public Workshop - Written Comments Received
  • Kimberly Burr - Northern California River Watch
  • Larry Hanson - Northern California River Watch
• Notice of Public Workshop - A revised draft of a proposed regulation that would affect water diversions for purposes of frost protection in Mendocino and Sonoma Counties, along with associated draft rulemaking documents, have been made available for public comment prior to the initiation of the formal rulemaking process. The State Water Resources Control Board will hold a public workshop on April 6, 2011 to hear comments on the draft documents.
  • Revised Draft of the Proposed Regulation
  • Draft Initial Statement of Reasons
  • Draft Economic Analysis

2010 Activities

• CEQA Scoping Documents and Comments Received
• Notice of Preparation and Public Scoping Meeting - Russian River Frost Protection Regulation, Mendocino and Sonoma Counties (posted 10/27/10)
• Russian River Frost Protection Update - State Water Board’s June 15, 2010 Agenda
• Proposed Edits to the Russian River Frost Protection Draft Regulations for discussion at the scheduled meeting on March 30, 2010.
  • Suggested Revisions to January 19, 2010 draft regulations (for discussion at March 30, 2010 meeting) submitted by Devon Jones, on behalf of the Russian River Frost Program (Devon Jones, Mendocino County Farm Bureau, David Koball, Fetzer Vineyards, Sean White, Mendocino County Russian River Flood Control & Water Conservation Improvement District, Pete Opatz, Silverado Premium Properties, Doug McIlroy, Rodney Strong Vineyard, Laurel Marcus, California Land Stewardship Institute, and Lex McCorvey, Sonoma County Farm Bureau).
  • Suggested Revisions to January 19, 2010 draft regulations (handed out at March 18, 2010 meeting) submitted by Devon Jones, on behalf of the Russian River Frost Program (Devon Jones, Mendocino County Farm Bureau, David Koball, Fetzer Vineyards, Sean White, Mendocino County Russian River Flood Control & Water Conservation Improvement District, Pete Opatz, Silverado Premium Properties, Doug McIlroy, Rodney Strong Vineyard, Laurel Marcus, California Land Stewardship Institute, and Lex McCorvey, Sonoma County Farm Bureau
  • Revised Russian River Frost Regulations provided during the January 19, 2010 workshop
• March 18, 2010 - Frost Regulation Working Group Process
  • Submitted Comments
    • Northern California River Watch
• March 15, 2010 - Revised Notice of Russian River Frost Protection Working Group Meetings - The State Water Resources Control Board has issued this revised notice containing a change in room location for the meetings originally scheduled for the Coastal Hearing Room. The meeting on Thursday, March 18, will now be held in Training Room 2 East/West and the meeting for Tuesday, March 30, will be held in Conference Room 1410
• March 8, 2010 - Notice of Russian River Frost Protection Working Group Meetings
• January 19, 2010, State Water Board's Agenda Item #7 Fact Sheet
  Workshop to receive a recommendation from staff concerning Board action to address the effects on salmonids of water diversion practices for frost protection of crops in the Russian River watershed in Mendocino and Sonoma Counties.
  • Maps Prepared by Stetson Engineers, Inc.
  • Draft Technical Memo - “Methodology and Sources of Information Delineation of Subterranean Streams and Potential Streamflow Deplaetion Areas”, Stetson Eng., May 16, 2008
  • Final Technical Memo - “Approach to Delineate Subterranean Streams and Determine Potential Streamflow Depletion Areas”, Stetson Eng., February 28, 2008.
  • Submitted Public Comments (January 19, 2010 workshop)
    

2009 Activities

• November 18, 2009 - State Water Board Workshop - Presentations by Parties
  • Winegrape Growers, Sonoma County Farm Bureau, Mendocino County Farm Bureau, Russian River Flood Control and Water Conservation Improvement District and California Land Stewardship Institute - "Russian River Frost Program"
  • Russian River Property Owners Association - "Frost Protection monitoring: Actions in 2009"
  • California Department of Fish and Game - "Frost Protection Diversions in Mendocino and Sonoma Counties" - Richard Fitzgerald, California Department of Fish and Game Bay Delta Region Yountville
  • National Marine Fisheries Service - " Frost Protection and Salmonids Science, Service, Stewardship: A threat assessment review and recommendations for future action"
• November 17, 2009 - Notice of Violations and Intent to File Suit Under the Endangered Species Act - Center for Biological Diversity, Northern California River Watch and Coast Action Group
• November 10, 2009 - Submitted Comments
• October 27, 2009 - Notice of Public Workshop - The State Water Resources Control Board held a public workshop on November 18, 2009 to consider recommendations for actions regarding water diversions for purposes of frost protection in Mendocino and Sonoma Counties.
• April 7, 2009 - State Water Board Workshop
  The State Water Board held a workshop to receive information regarding the need for and the effect of water diversions for purposes of frost protection of crops.
  • Presentations:
    • Russian River Watershed Frost Prevention Pumping Task Force - National Marine Fisheries Service Office of Law Enforcement - Derek Roy Special Agent
    • Frost Protection Considerations - Glenn McGourty, Winegrowing Advisor - Rhonda Smith, Viticulture Advisor - UC Cooperative Extension
    • Russian River Salmonids - Overview/Life History/Current Status - Richard Macedo - Northern Region Department of Fish and Game
    • Scope of Potential Frost Protection Impacts on Salmonids, With an Emphasis on the Russian River - David Hines, Fishery Biologist / Water Rights Specialist - Brian Cluer, Ph.D., Hydrologist / Geomorphologist - Robert Hoffman, Assistant Regional Administrator National Marine Fisheries Service
    • DFG Roles and Responsibilities - Options for Conserving Fish and Wildlife Resources - Environmental Scientist Tracie Nelson - Northern Region Department of Fish and Game
    • Sean White, General Manager - Mendocino County Russian River Flood Control and Water Conservation Improvement District
    • Pam Jeane - Sonoma County Water Agency
    • The Need for and the Effect of Water Diversions for Purposes of Frost Protection in Mendocino and Sonoma Counties Grower Comments, Concerns, and Perspectives - David Koball, Vineyard Director - Mendocino County Fetzer/Bonterra Vineyards - 2nd Vice President - Mendocino County Farm Bureau
    • Laurel Marcus, Executive Director - California Land Stewardship Institute
• April 2, 2009 - Submitted Comments Regarding Russian River Frost Protection
• March 2009 - Notice of Public Workshop
• February 27, 2009 - NOAA National Marine Fisheries Service - Letter Requesting Immediate Action

(Updated 1/3/12)