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Stream protections vs. private property rights in Sonoma County

David Rabbitt, Chair Sonoma County Board of Supervisors 575 Administration Way, Room 100 A Santa Rosa, CA 95403

November 23, 2014

Subject: Proposed Riparian Corridors (RC) Ordinance and Zoning Code Changes

The Sonoma County Water Coalition (SCWC) comprises 31 organizations, representing more than 24,000 concerned citizens. SCWC is especially concerned about the preservation of a safe, economical and reliable water supply for all living things. SCWC also works to preserve healthy ecosystems, supports watershed restoration and protection and careful oversight of all public trust resources, including surface and groundwater quality and quantity.

The Sonoma County General Plan 2020 (GP 2008) recognized that many land uses can damage near-stream and instream environments. Both the General Plan and the proposed Ordinance language recognize that certain land uses pose threats to stream flows and ecosystems, and note that these have impaired many of the County's water bodies. GP 2008 Goals and Policies in the Conservation Element therefore called for developing and approving an Ordinance that would generally afford needed (and mandated) protections for those habitats and for water quality.

SCWC supports the draft Ordinance of Zoning Code Changes for protecting Riparian Zones (PRMD) as proposed because it offers some improvement over the current administrative structure governing near-stream activities that need to be regulated. But we recognize that the Ordinance is not yet in full conformity with the General Plan's Goals, Objectives, and Requirements, even though it is consistent with the intent of the GP 2008. Our members see this as a first step toward eventually implementing a Zoning Code that fully embodies GP 2008, as required by California Law.

SCWC members are concerned that the Ordinance does not explain how the proposed protections will sufficiently protect streams and promote the recovery of stream functions for the impaired watercourses. The Ordinance also contains so many exceptions to the setbacks as to compromise the level of protections for those streams.

We strenuously object to language in the proposed Ordinance claiming that the 2008 CEQA review and analysis for the 2005 General Plan revision constituted an approval process for this Ordinance (and by extension any other County ordinance to be promulgated for implementing GP 2008). This claim is not accurate for the following reasons:

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BY ANGELA HART
THE PRESS DEMOCRAT
November 23, 2014 

Photo house above river with trees cleared

Trees cleared above the Russian river in Haciends, Thursday Nov. 20, 2014. (Kent Porter / Press Democrat) 2014 Davis, 2012

Sonoma County’s effort to implement one of its most controversial land use policies — protective buffer zones along 3,200 miles of rivers and streams — has reignited a pitched debate between environmental organizations, farmers and private property rights activists about how to best protect and manage waterways throughout the county.

The dispute is fundamentally about the reach of government regulation onto private land to safeguard public resources, including water quality and wildlife. The debate has been closely monitored by environmental and agriculture groups, and county officials have acknowledged that the outcome will have far-reaching implications.

“This is hugely important, and it involves a tremendous amount of properties,” said Board of Supervisors Chairman David Rabbitt. “What we’re trying to do is protect the environment while balancing the needs of people who live and work here.”

As proposed, the restrictions, which are up for a decision today at the Board of Supervisors, would curb development, farming and other activities on more than 82,000 acres of land outside city limits, most of it on private property.

Supporters, including environmental groups, say the measures are needed to protect common resources such as drinking water, as well as wildlife that depend on streams for habitat.

“This is a very important step in loosening the straps of the straight jacket we’ve put on the Russian River, to help with flood protection, species preservation and groundwater recharge,” said Don McEnhill, executive director of the Russian Riverkeeper, an advocacy and stewardship nonprofit group.

But opponents, including the Sonoma County Farm Bureau, say the measures trample on the rights of private landowners.

“This is a regulation for the sake of regulation,” said Tito Sasaki, president of the Farm Bureau. “It has no consideration for its negative economic impact on affected property owners or for truly enhancing our environment.”

The issue spurred intense public hearings in the lead-up to adoption of the county general plan in 2008. Supervisors backed the policy outlining so-called riparian setbacks at the time, but the county has struggled with how to implement them through the zoning code.

The county delayed action a year ago and kicked the discussion back to environmental advocates and farming interests for more input

In the interim, it appears some landowners who would fall under the proposed zoning changes have taken matters into their own hands. The county has received at least four reports of property owners clear-cutting streamside trees and shrubs on their land.

McEnhill, the Riverkeeper director, has collected photographs and other evidence submitted to the county that he says shows razed vegetation on stream banks along the Russian River and its tributaries.

McEnhill contends the clear-cutting is a preemptive move by some property owners to get ahead of the county’s rules before they are passed.

“We’re seeing lots of clear-cutting along creeks, especially in the last eight weeks,” McEnhill said. “And this summer, we found dozens of people who were cutting everything down along the Russian River.”

Tennis Wick, the county’s planning director, said he has spoken with McEnhill and received his photographs showing the alleged clear-cutting. Code enforcement officers with the Permit and Resource Management Department have not yet verified the complaints.

The proposed ordinance would allow county officials to penalize such activity under authority they say they currently do not have.

“This is one reason we want to pass this ordinance, so we can identify code violations,” Wick said. “If people are clearing in the manner in which Don photographed, there are other violations of state law. It’s disheartening.”

The proposed zoning rules would spell out 50- to 200-foot setbacks that would prohibit new buildings, vineyards and other crops, but would allow grazing, removal of nonnative plant species and installation of wells. The goal is to preserve critical plant and habitat along streams and strengthen environmental protections for imperiled fish and other wildlife species.

County planning officials maintain the new rules simply codify the policy outlined in the general plan six years ago. But opponents who packed public hearings at that time have continued to raise objections.

The lingering dispute led the county last year to form a committee of government officials, farming, industry and environmental representatives to hammer out a compromise.  

Amendments to the riparian corridor ordinance were approved 4-1 by the county’s Planning Commission in August.

Farming groups have sought the proposed exemptions allowing wells, grazing and agricultural road turnouts. Environmental groups said those activities, however, would negatively impact streams and wildlife.

“Allowing new wells in the riparian zone during a drought is like taking an endangered fish species off of life support,” said Dennis Rosatti, executive director of the environmental group Sonoma County Conservation Action, who has been involved in crafting new zoning rules.

Federal biologists say the proposed rules do not go far enough to protect the Russian River and imperiled steelhead trout and coho salmon that rely on the river to spawn.

“While the buffers are a good first step, they stop short of what science says is the proper distance required to protect aquatic habitat for juvenile salmon and steelhead,” said Rick Rogers, a biologist with the National Marine Fisheries Service. “These riparian zones, when you have trees and rocks and leaf matter that fall into the stream channel, are essential to maintain that habitat.”

Agriculture groups said they have agreed to compromises, citing changes to how the riparian setbacks are drawn.

“Are we happy about everything? No,” said Bob Anderson, executive director for United Winegrowers for Sonoma County. “But I think we have come up with a document that will work.”

Farmers from Sonoma Valley to Healdsburg said their primary remaining concern is who at the county would oversee enforcement. Farmers want it to be the Agricultural Commissioner’s Office and not the Permit and Resource Management Department, which oversees planning and building activities.

“That’s another layer of government that we don’t want,” said Norm Yenni, who farms 2,300 acres of hay and grain near Sears Point at the mouth of San Pablo Bay. “We’d like this to be in the hands of someone who understands agriculture.”