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01.26.11

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Phaedra
Photograph by Gabe Meline HIDDEN ACTIVITY: Jim Doerksen at the gate to Cornell's proposed winery, where unpermitted tree and brush removal has caused harmful erosion to a creek once teeming with salmon.

The Wrath of Grapes

How a Goldman Sachs executive is helping to kill Mark West Creek— and what the county isn't doing about it

By Alastair Bland


For decades, Sonoma County's wine industry has been thriving. The county's salmon and steelhead, meanwhile, are vanishing, and some fisheries biologists, attorneys and conservationists assure that the wine industry's gain is the Russian River's loss.

To Patrick Higgins, the story boils down to a one-line synopsis: "The county is trading fish for wine." Higgins is a private-practice fisheries biologist in Arcata. Among his ongoing battles to save the North Coast's struggling fish species, including federally endangered coho salmon and steelhead trout, is the fight for Mark West Creek.

Though many streams naturally dry up during the arid summers of Sonoma County, this small tributary of the Russian River historically has not. Mark West Creek was once the main spawning stream for the steelhead and coho salmon that made the Russian River famous.

But lately, Mark West and its feeder streams have been running dry, according to residents who live nearby. Jim Doerksen, who has lived within sight of Mark West Creek for 43 years, has been measuring its flow levels since 2005 after visibly dwindling water levels spurred concern. Between 2006 and 2009, he says, its flows almost entirely vanished each summer. In 2008, Doerksen measured what might have been the lowest flow ever recorded in Mark West Creek, a volume of six one-hundredths of a cubic foot per second.

"We got down to the level of a garden hose, and all the cohos and steelhead died," he says.

And in 2010, after another year of heavy rains, the stream nonetheless ran dry in June, Doerksen says—earlier than it ever had before.


Beating Themselves Bloody

Doerksen, a licensed hydrologist and civil engineer, has seen Mark West Creek and its once enormous fish runs deteriorate since he bought and largely restored his 122-acre parcel in 1967, when the stream boasted large annual returns of spawning fish. A Department of Fish and Game survey conducted in the late 1960s rendered an estimate of about 9,500 steelhead and salmon juveniles per mile of river.

And though Doerksen remembers years when several dozen adult spawners could be seen at a glance in the pools that staircase down his property, today he can count on one hand the number of fish that return each year. In 2009, for example, he saw just three spawning fish pass his property. This winter, though the heavy rains would normally have preceded the appearance of spawning fish freshly arrived from the ocean, Doerksen has counted none at all.

As reported by Will Parrish in the Anderson Valley Advertiser on Nov. 25, residents near Mark West Creek blame not only the county for the stream's plight but also the wine industry; namely, two vineyards upslope from Doerksen's property: Cornell Summit Vineyards, owned by Goldman Sachs executive Henry Cornell, and Pride Mountain Vineyards. With at least 100 acres of vines between the two, each winery uses groundwater that might otherwise feed the watershed.

Development opponents, who have formed alliances like Friends of the Mark West Watershed and New Old Ways Wholistically Emerging, have also accused each property of illegally removing brush and trees and facilitating erosion, including a large 2006 landslide that essentially destroyed the stream's deep-pool spawning and rearing habitat.

Kate Wilson, a former resident of the area, saw the stream shortly after the landslide, which she blames on the agricultural activity upslope. "It was so sad," she recalls. "The stream was filled in with this fine sediment so that it looked like a concrete street. You could see the steelhead trying to dig in and find the gravel to lay their eggs, but they were just beating themselves bloody trying."

Sonoma County's planning supervisor David Hardy recognizes that vineyards have impacted watersheds like Mark West. "In Sonoma County, vineyards have stressed the water source," Hardy says. "That's clear. I wouldn't say that overdrawing of the resource hasn't impacted salmon."

Yet the county has a long history of approving proposed wineries without asking for environmental impact reports, which the California Environmental Quality Act (CEQA) mandates if a so-called lead agency—in this case, Sonoma County—decides the project could harm the environment. Only twice have Sonoma County wineries been required to produce EIRs before building—one was the large Gallo project in Dry Creek Valley; the other, Kendall-Jackson's La Crema Winery in Windsor—and sources critical of the county allege that its board of supervisors simply ignores CEQA on a regular basis.

As of press time, despite repeated requests for comment to district supervisor Valerie Brown, whom Doerksen says has not yet responded to invitiations to visit his property, Brown has issued no comment.


Wall Street Wine

Henry Cornell lives with his wife and children in New York City. There, he serves as chief operating officer in the merchant banking division of Goldman Sachs, which reaped $12.9 billion from the 2008 financial bailout. About a year ago, Cornell launched a $6 million remodel of his home, a historic townhouse which some have quipped is being renovated with taxpayers' money.

Out west in Sonoma County's salmon country, Henry Cornell's developments may continue, and he has thus far received the go-ahead from county officials to construct a 10,000-case winery to complement his vineyard off St. Helena Road. He has bought up multiple properties adjacent to each other for the winery, but currently the project seems to be on hold while its backers convene behind closed doors.

Cornell's project manager Guy Davis, winemaker at Davis Family Vineyards, did not return multiple calls from the Bohemian seeking comment.

In Oct. 2008, Cornell submitted to the county's board of zoning adjustments a mitigated negative declaration, a standard step by which applicants propose to mitigate a building project's potential impacts on the environment. In that document, Cornell acknowledged concerns about aesthetics, air quality, cultural resources and geologic disturbances during construction, but gave no consideration to the limited availability of local water or to the endangered coho salmon and steelhead in the stream.

An onslaught of criticism from state agencies followed. The Regional Water Quality Control Board's state water engineer, David Leland, wrote to the county on Nov. 25, 2008, advising Cornell to go back to the drawing board with his mitigation measures.

Leland noted a severe deficiency of water, referring to a "large landowner in the upper reaches of the [Mark West Creek] watershed" who had been receiving water via trucks from offsite. He observed that Mark West Creek was already suffering from sediment runoff related to unpermitted vegetation removal and land grading on the property of Henry Cornell. Leland also remarked that in the summer of 2008 the county's permit and resource management division simply gave Cornell "an after-the-fact stockpile permit" for illegal land development.

A week later, on Dec. 3, 2008, the Department of Water Resources' engineering geologist Christopher Bonds also warned of a very limited groundwater supply in the Mark West Creek watershed. The Department of Fish and Game weighed in, too, warning that Mark West Creek's already meager flows were highly susceptible to overuse by "single family dwellings and vineyards."

Cornell has since submitted a new mitigation proposal to offset potential damages to the stream. The plan would eliminate a nearby three-bedroom home, which, according to planning supervisor Hardy, uses as much water as would Cornell's proposed winery. In theory, the usage problem would be solved, but Doerksen, his neighbors and other opponents still fear that the winery, if built, would finally kill the struggling stream.

In Hardy's view, existing vineyards cannot be held fully accountable for Mark West Creek's fishery crisis. He contends that the landslide that devastated the north fork tributary was a natural event, spurred by rains and unrelated to upslope deforestation and land modification, and he believes multiple stressors are facilitating the statewide decline of salmon and steelhead numbers.

Yet it remains uncontested that the Russian River's public water is being stolen. During a survey about five years ago, the state's Water Resources Control Board counted at least several hundred (though surveyors initially reported 1,771) unpermitted ponds and lakes on the county's private lands, agricultural reservoirs created via unauthorized diversions from nearby waterways. In some cases, streams had actually been dammed. Such actions that adversely affect coho salmon and steelhead are violations of the federal Endangered Species Act, which the National Oceanic and Atmospheric Administration's (NOAA) local investigators are charged with enforcing.

Investigators from NOAA—badged, gun-bearing officers of which there are just two patrolling the entire Bay Area—recently cracked down on a cluster of wineries in Mendocino County that were identified as the culprits in a spring fish kill of Russian River steelhead, according to NOAA's information officer Derek Roy. The kill occurred when the wineries simultaneously withdrew water from the river for use in dusting their vines with mist and creating a protective layer of ice, an often-problematic technique commonly called "frost guarding." To rectify the situation, NOAA helped the landowners build storage ponds at each vineyard, water reserves that could be easily replenished by winter rains and which would eliminate the instantaneous demand for river water when temperatures crashed.

The Department of Fish and Game's wardens sometimes cooperate with those at the federal level, but apprehending suspected violators of the state Endangered Species Act is uncommon. In fact, in Mark West Creek and its feeder streams, there has been no obvious infraction of the state law in spite of the documented decline in the stream's salmonids, according to Adam McKannay, an environmental scientist with the department. Though witnesses say the grape growers upslope caused the 2006 landslide that devastated the stream's fish habitat, McKannay says that the Endangered Species Act at the state level only prohibits visible destruction of an endangered species.

"Someone basically needs to be killing fish to violate the law," McKannay says. "You'd need dead bodies to prosecute anyone, or an analysis showing that fish are being left stranded [by water removals]."

Doerksen says that in 2008—the year he and his neighbors saw the stream dry up for the first time in their 40 years of living there—a "100 percent fish kill" took place. Doerksen and others watched the creek closely that summer and estimated that, in the 28 miles between the headwaters and the Russian River, just 3.5 miles of Mark West Creek contained running water.

The NOAA's Roy says that stream gauges have now been placed in Mark West Creek to better monitor impacts on the stream and its fishes, but it may be a decade too late.


Consultant Chaos

On Sep. 23, 2010, Henry Cornell's winery construction plan was approved by county officials. To gain the green light, Cornell followed the standard Sonoma County procedure: he hired a consulting firm—Prunuske Chatham Inc. in Sebastopol, whose past projects include the Prince Memorial creek restoration in Santa Rosa and numerous watershed projects in Sonoma County—to assure that his proposed project would cause no harm to the environment. The firm did just that; it conducted an inspection on June 28 and submitted a "biological resources assessment" to the county in July stating that Cornell's proposed winery would not damage the immediate environment.

Four scientists filed objections, arguing that the assessment from Prunuske Chatham was inadequate and flawed. But the county's board of zoning adjustments responded to Cornell's biological review by concluding that the proposed winery would have no "potential significant impact on biotic habitat of concern to [the Department of] Fish and Game." The board voted 50 to grant Cornell his building permit.

Stacy Li, a retired fisheries biologist with the National Marine Fisheries Service (NMFS) was among the four scientists who peer-reviewed Prunuske Chatham's assessment. In his review, Li said the site inspection was seriously flawed and that inspectors likely saw no steelhead in Mark West Creek for one simple reason: the creek was dry at the time of inspection.

In an interview with the Bohemian, Li calls it a "disingenuous claim" that there were no fish seen during the survey. "We know that listed fish use that stream as habitat."

Before the 2006 landslide filled in the river, Li says, Mark West Creek constituted "marvelous, marvelous habitat" for coho salmon. Specifically, it was the stream's staircasing pattern of slow deep pools separated by abrupt but short waterfalls that allowed adult coho to move upstream and lay eggs and their fingerling offspring to reside in-river for their first year of life. But when the estimated 10,000 cubic yards of land collapsed, the loose earth filled in the deep pools and turned the perfect staircase-stream structure into a rapid water chute. And while Mark West Creek was likely a main producer of the Russian River's once legendary fish runs, Li says that the stream today "is a shadow of what it once was" that "will probably take decades to recover."

And for all the opposition to future development on the slopes above Mark West Creek, Doerksen notes that the damage is done. "The real problem," he says, "has already occurred."


Skirting the Law

Li is among multiple sources for this story who have suggested that wine-industry influence and money appear to be corrupting the system of granting development permits. Li doubts the integrity of the review-and-report procedure of assessing—and usually downplaying—potential impacts of a project.

"Are these the best reports that money can buy, or are they actually true?" Li asks. "To say that everything [with a proposed construction project] is OK when there are so many indicators that things aren't OK should be a warning sign."

At the federal level, David Hines, a water-rights specialist with the NMFS, says Sonoma County officials have a tendency to grant permits to wineries without respect to water availability.

"It seems that a winemaker will walk in the door, and the county doesn't say anything about water and whether there's enough there, and just gives permission to build," he says. The county, after all, does not regulate water use, Hines notes; the state does.

"There is a definite gap between the county and their permitting process and the state's water-rights process," he explains. "By the time I get involved in a water-rights contest, the water user often says, 'Well, we've been taking this water for years.'"

Some laws, such as the Endangered Species Act, which in theory should prevent harm to coho and steelhead, are a flimsy matter of interpretation, according to Hines. "To me, the county ignoring water availability could be creating the risk that [coho] could be harmed, which could constitute violation of the federal Endangered Species Act," he says.

Higgins claims landowners left and right are breaking other laws throughout Sonoma County, but that perpetrators rarely pay consequences. He cites state water code 1243, which says the Department of Fish and Game "shall recommend the amounts of water, if any, required for the preservation and enhancement of fish and wildlife resources." This, Higgins says, just isn't happening.

But harmful water withdrawals from streams are often difficult to identify. Many waterways may be impacted by "cumulative effects, where, over time, more and more people are putting straws into the river," Hines says, "and deciding which straw is the one that broke the camel's back isn't so easy." As a result, overallocation of water and destruction of endangered species' habitat may occur unchallenged.

Environmental lawyer Paul Carroll, who has represented numerous plaintiffs in recent North Bay lawsuits against wineries, asserts much the same thing. "Cumulative impacts are much harder to prove," he says, than cases of one party diverting a stream, "but they're very, very real. In Mark West Creek, the water supply has been seriously impacted."

Laws are in place to assure that this doesn't happen and that watersheds are not overdrawn by land-development projects, but they haven't always worked as seemingly intended. State water code 1375, for example, says a "permit to appropriate water" can only be given if, among other requirements, the applicant shows there is "unappropriated water available to supply the applicant."

But county and state authorities explained to the Bohemian the loophole that allows developers to skirt this law: state code 1375 only applies to potential land developers wishing to divert visible flows of surface water. Since Cornell and Pride both pull their water from wells, 1375 does not apply, even though many hydrologists and geologists know that groundwater supplies are often closely related to flows in the nearest stream.

Land developers often deny this. "I see it all the time," Carroll says. "People say there's no connection between wells and the river."

Such has been suggested about Mark West Creek and the wells that supply Pride and Cornell vineyards. But Doerksen assures that the stream trickling over his property is highly sensitive to local groundwater removals. Last spring, Mark West went dry immediately after a sizable June rainfall.

"It showed there is just so little water in the ground that the minute it stops raining, the stream dries up," Doerksen says.

Kate Wilson, the former area resident who lived across the road from Doerksen between 1995 and 2005, remembers when the stream began showing its first signs of severe stress about seven years ago. Its summer flow levels hit all-time lows, near as she could tell, and she attributes the recently planted vineyards up the hill and the wells that supplied them with water as the culprit.

Alan Levine, director of the river-protection organization Coast Action Group in Arcata, believes law enforcement agencies are simply reluctant to step on the toes of the wine industry.

"Fish and Game is supposed to be enforcing, but they aren't doing their job [protecting listed species]," he says. "It's because you're dealing with grapes here. It's a multibillion dollar industry."


Future Challenges

But the situation may not be hopeless. Recent landmark decisions in Sonoma County indicate that wineries can be successfully challenged. To halt construction of the proposed Pelton House Winery in Knights Valley, which the county had approved in 2009 without requiring an EIR, local resident Craig Enyart sued in Sonoma County Superior Court. With his attorney, Paul Carroll, Enyart and about 25 other plaintiffs claimed the defendant's mitigated negative declaration was inadequate. In sum, Enyart's suit charged that the county was violating state law: CEQA.

Enyart won. As a result, the county was forced to order a CEQA environmental impact report from the defendant, billionaire wine magnate Jess Jackson. Whether Jackson will proceed with the process or call off plans remains as yet unknown, according to county planners.

Enyart remains frustrated that adherence to environmental law tends to not be a priority, at least not in Sonoma County, unless citizens file lawsuits. "How many citizens have the time, the inclination or the understanding of the legal process to bring these suits forward?" he asks. Enyart says he spent five years entrenched in the legal fight against the Pelton House Winery. "It's a long, arduous process."

Now, Carroll is working on another community-versus-winery case in which residents of Occidental have sued to stop the construction of a large winemaking facility near Gravenstein Highway and Occidental Road proposed by the Best family.

"This winery is going to be the size of a football field, and [the Best family] is claiming that they can make a mitigated negative declaration," says Carroll, who reports that county officials have acted "arrogantly and indifferently" to warnings from the state level that the winery would illegally destroy a wetland.

Like Hines, Higgins, Doerksen, Enyart, Wilson and Li, Carroll feels the county all too freely grants development permits to applicants in the wine industry. Indeed, Hardy, the county's planning supervisor, said he cannot recall any case of the county rejecting a winery. "The county has been granting permits to wineries like Halloween candy," Carroll observes, adding that mitigated negative declarations are as often as not inadequate if not fraudulent.

Enyart feels the county is brazenly breaking the law. "It's premeditated," he says. "They know they're ignoring [CEQA]. They know not all these projects should be approved and that not all of them can be passed by a mitigated negative declaration."

As for Doerksen, the survival of the creek in his backyard is beginning to look hopeless. He believes unless county policy and law enforcement enacts a fast turnaround, the North Coast's salmon and steelhead runs will eventually go extinct.

"I see the water vanishing every year, and in short order the salmon and steelhead will be gone," he says. "Apparently, our board of supervisors has decided that the fish will have to go, that the fish will have to be sacrificed."

Traded, that is, for wine.


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