In 2017, Napa County submitted an Alt Plan that claimed stable groundwater levels over a 28-year base period. In the Alt Plan LSCE avoided discussing substantively the issue of potential injury to the public trust or interference with groundwater dependent ecosystems (GDE). Under SGMA, GDEs are ecological communities or species that depend on groundwater emerging from aquifers or groundwater occurring near the ground surface (GSP Regulation, section 351, subdv. (m)).

The Alt Plan was rejected by the Department of Water Resources (“DWR”) in November 2019. As the DWR Rejection (“Rejection”) largely mirrors current difficulties, the agency’s comments are recited at length.

The DWR stated that the County’s sustainability indicators section conflated “three requirements of the sustainable management criteria set out in the GSP Regulations: undesirable results, [UR] minimum thresholds, [MT] and measurable objectives [MO].” For clarity they were explained by the DWR as follows:

• 23 CCR 354.28(c)(1) specifies that the MT for chronic lowering of groundwater levels shall be based on groundwater elevations indicating a depletion of supply that may lead to undesirable results;
• 23 CCR § 354.28(c)(2) specifies that the minimum threshold for depletions of interconnected surface water shall be the rate or volume of surface water depletions caused by groundwater use that has adverse impacts on beneficial uses of the surface water and may lead to undesirable results; and
• 23 CCR § 354.32 requires that each basin be monitored, and that a monitoring network include monitoring objectives, monitoring protocols, and data reporting requirements be developed that shall promote the collection of data of sufficient quality, frequency, and distribution to characterize groundwater and related surface water conditions in the basin and evaluate changing conditions.

The DWR Rejection noted that the sub-basin was inadequately monitored: only eight wells had ten years of reporting, and surface water ground water interfaces were inadequately measured. More importantly for the purposes of this appeal, the DWR reported the County established that there were diminished baseline flows that had to be taken into consideration.

Of the representative monitoring wells used for groundwater levels, storage, and depletions of interconnected surface water, 10 of the wells did not have 10 or more years of data. These 10 wells are the multi-completion wells installed in 2014, specifically for monitoring surface water-groundwater interactions. …

… the County proposes that historically diminished baseflow, although it could be considered an undesirable result, should not be disqualifying because SGMA does not require an agency to address undesirable results that occurred before, and have not been corrected by, January 1, 2015.

While it is true that SGMA does not require undesirable results prior to 2015 to be remediated, the presence of undesirable results before 2015 undermines the County’s claim that it has operated the Napa Valley Subbasin without undesirable results.

The DWR Rejection said in part: “The [Alt Plan] notes that the historical occurrence of diminished baseflow could be considered an undesirable result but claims that this possibility is basically immaterial inasmuch as SGMA does not require an alternative to address undesirable results that occurred before, and have not been corrected by, January 1, 2015.” This is the same existing injury argument that Napa County has used to decline to discuss Tier 2 and Tier 3 review of groundwater extraction.

The DWR response to Napa County is informative:

The County pivots on this point, taking language from SGMA and employing it to make two arguments. The County notes that a GSP is not required to address undesirable results that occurred before, and have not been corrected by, January 1, 2015, and that a groundwater sustainability agency has discretion to set measurable objectives and the timeframes for achieving any objectives for those undesirable results. The County applies both provisions to its situation. …

At any rate, the 2015 baseline for undesirable results is simply a limitation on what conditions must be addressed; it does not operate as an exoneration of the undesirable result itself. SGMA may not require a basin to reverse the effect of undesirable results to pre-SGMA conditions, but if undesirable results occurred during the 10-year period of the Alternative, that basin cannot demonstrate that it operated within its sustainable yield. (Emphasis added)

In early 2020, Water Audit wrote to the Napa Board of Supervisors urging them to consider public trust issues and highlighting portions of LSCE reports that indicated adverse surface water groundwater interface. The County was advised of its duty to the public trust. Caution and increased monitoring were recommended. A public Forum was held to deliver the message. The response from the County has been for the Director of Planning (current acting CEO) to repeatedly deny any responsibility for sufficient stream flows.

In 2022, a Napa County Groundwater Sustainability Plan (“GSP”) was prepared and filed that represented the Basin to be operated within sustainable limits and without GDE injury requiring remediation. Notice that the GSP was approved was received by Napa County in January 2023.

Because the drying of the Napa River at CSH predated 2015, the GSP continued to document the drying reach but no longer considered the drying reach a reportable injury under SGMA. (See GSP 6-50 and Figure 6-18. See also: Calculated Depth to Groundwater at Napa River Thalweg within One Mile of Monitored Wells, Spring 2010, Figure 121; Spring 2015; GSP Figure 6-122, Spring 2019, GSP Figure 6-123-a; Surface Water-Groundwater Hydrograph Site 5: Napa River at Pope Street, GSP Figure 6-18.)

Although a pre-2015 injury may not be remediated under SGMA, the courts have held that even long-standing injuries are subject to public trust review. (See Audubon, supra. 33 Cal.3d 419; California Trout, Inc. v. State Water Resources Control Bd. (1989) 207 Cal.App.3d 585 (Cal Trout I); California Trout, Inc. v. Superior Court (1990) 218 Cal.App.3d 187 (Cal Trout II); ELF, supra. 26 Cal.App.5th 844.)

In March 2023, LSCE authored a report entitled the Napa County Groundwater Sustainability Annual Report – Water Year 2022. (herein “LSCE 2023”) It states that from 2015 to 2022 the County monitored from 13 to 15 representative monitoring sites in proximity to CSH. (LSCE 2023, Table 6.3.)

Over pumping of groundwater impairs groundwater dependent ecosystems. (LSCE 2023, Figure 4-2.) The saturated thickness of the alluvial aquifer substantially increased in most parts of the Subbasin between Spring 2021 and Spring 2022 with a predominant range of one foot to 10 feet (LSCE 2023, Figure 6-21). Notable declines in saturated thicknesses (five to seven feet) occurred in some areas north of St. Helena, i.e. in the area of the Duckhorn project. (LSCE 2023, p. 74.)

LSCE 2023 contains the admission that, contrary to the representation of Napa County’s sustainable conduct in the GSP, groundwater extraction has exceeded sustainable limits in five of the last seven years.

The LSCE 2023 report states:

Groundwater pumping was a total of about 18,790 AF in WY [water year] 2022, exceeding the MT [minimum threshold] for reduction of groundwater storage. Additionally, groundwater pumping in WY 2022 results in 18,023 AF as the seven-year groundwater pumping average. The seven-year groundwater pumping average in WY 2022 qualifies as an undesirable result in the Subbasin. (Emphasis added)

The information is readily available to determine whether Duckhorn is causing or will cause injury to the public trust. Bartlet’s WAA states “At the request of Napa County Planning, Building, and Environmental Services Division, a Tier 2 and Tier 3 Water Availability Analysis was prepared by Wagner & Bonsignore and has subsequently been submitted to Napa County.” (Attachment H, p. 2.)

See also:

“The DVW project team has conducted extensive analyses of anticipated groundwater usage and potential effects on adjacent wells and the Napa River. Specifically, in addition to the standard Tier 1 Water Availability Analysis, Tier 2 & 3 analyses have been conducted as outlined in the County of Napa Water Availability Analysis Guidelines (May 2015). The report reaches the following conclusions: 

• From review of the Tier 1 WAA analysis and discussions with Duckhorn Vineyards, the only well with a planned increase in pumping demand is Domestic Well #1, which will provide water supply for the new winery facilities. Of the four remaining onsite wells, Irrigation Wells #1 and #3 are planned for abandonment, Well #2 will have reduced pumping demand (from removal of vineyard and possible processed water use for irrigation), and Well #4 will have no change in annual demand.
• From the well logs, geologic maps and reports reviewed, and our analysis, groundwater pumping influence from onsite Domestic Well #1 and Well #4 under confined aquifer conditions, appears to have a potential to reach neighboring wells. However, our analysis indicates the effects would be relatively minor and within the default values given on Table F-1 of the County WAA Guidance Document.
• Review of the well completion report for Domestic Well #1 indicates that it draws water supply from tuffaceous units of the Sonoma Volcanics. The Napa River is incised into young alluvial deposits that extend to a depth of 40 feet and were sealed off from the volcanics during well construction. No direct connection to the overlying alluvium is indicated in the well log.
• Analysis of potential streamflow depletion using the USGS program STRMDEP08 indicates that pumping from the project well (Domestic Well #1) might have a small effect on the Napa River if some infiltration were to occur through a leaky However, the effects when pumping at the water system design output of 12 gpm appears to be very small and not likely measurable, if it is occurring.

The complete Tier 1, Tier 2 and Tier 3 analyses are included as part of the documents submitted in support of the Modification application.”

The DWR has stated that the reported depletions of interconnected surface water also have significant and unreasonable adverse impacts. LSCE 2023 reported an undesirable result when the representative monitoring site in the proximity of the Duckhorn project fell below the minimum threshold. (LSCE 2023.)

This withholding of evidence precludes the ability to challenge conclusions allegedly found on this data. For example, the assertion “No direct connection to the overlying alluvium is indicated in the well log” appears to be in direct contradiction to the conclusion in the Slade report that production wells screened and/or gravel packed in the alluvium can nevertheless draw directly from the alluvium that is in direct contact with the Napa River. This conflicting professional opinion can be resolved by qualified expert review of Tier 2 and Tier 3 analyses.

3. The Proposed Water Demand exceeds groundwater recharge.

On its face, the 14.0 acre-feet proposed water demand by Duckhorn is in excess of current limits. The current water use criteria for a parcel located within the “Napa Valley Floor” area is defined as 0.3 acre-feet per acre per year, or 9.7± acre-feet per year for the project.4

Water supply resiliency is a threshold of significance for land use change or development projects. This project requires an EIR that must first answer the question posed by CEQA, Section G, XVIII Utilities and Service Systems (d).: “Would the project have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed?”

The public trust imposes a second related question for its trustees: “Can existing uses

continue, or must they be abated to mitigate injury to the public trust?”

Although the winery has been in operation since 1976, no tangible evidence is disclosed in the Application of actual historical or present water use; the Application relies exclusively on statistical norms. “The groundwater demand generated … is estimated to remain the same.” (Attachment H, p. 7) “The total estimated water usage for the existing and proposed uses for the project is calculated based on the Guidelines for Estimating Residential and Non-residential Water Use.” (Attachment H, p. 5)

“When the well’s dry, we know the worth of water.” -Benjamin Franklin

4. The evidence shows the proposed project will consume more water than the existing facility.

The adopted Findings summarily state that water saving features would reduce the overall groundwater use of the project.

The project is considered not to have potential to significantly impact groundwater resources. Because the projected water demand for the project is below the estimated water availability acre feet per year for the parcel, the requested Use Permit is consistent with General Plan Goals CON-10 and CON-11, as well as the policies mentioned above that support reservation and sustainable use of groundwater for agricultural and related purposes. The project will not require a new water system or other improvements and will not have a negative impact on local groundwater. (Attachment A, p. 6.)

Attachment H, at Table III, estimates a total water demand of 14.00 acre-feet, with tasting room visitation at 0.74 acre-feet per year, and events and marketing at 0.42 acre-feet per year, for a combined total of 1.16 acre-feet per year. The estimates allow not a gallon of water for kitchen use for the tens of thousands of meals anticipated to be served annually.

5. The failure to provide notice to the Department of Drinking Water and the City of St. Helena has prevented full and complete review of the project as required by the CEQA.

State Clearing House records (SCH No. 2023030759) indicate that notice was not given to two relevant state agencies: The Division of Drinking Water and the City of St. Helena.

Accordingly, there has not been a full and complete review of the project as required by CEQA.

A. Division of Drinking Water

The proposed sole source of potable water has not been approved or reviewed by Department of Health or Division of Drinking Water. The 2005 Regulated Water System Memo warns planning staff:

There is a possibility that existing wells may not meet the construction requirements for a regulated water system. If the source does not meet the requirements, a new water supply will have to be developed, which must be reflected in the feasibility report. Prior to issuance of a building permit, the new water supply must be developed and full plans for the water system must be submitted and approved by this division.

Although in narrative the Applicant avows that there are no changes anticipated in the potable water system, a more detailed review reveals that the Division of Drinking Water (“DDW”) should have been given the opportunity to review the Application.

The Bartelt WAA states that the Duckhorn system is a NTNCWS (non-transient non- community water system). (Attachment H, p. 5) The Water Code provides that this is a regulated public water system.

Water quality standards are to protect the public health or welfare and to enhance the quality of water. DDW regulates public water systems; oversees water recycling projects; permits water treatment devices; supports and promotes water system security.

Duckhorn represents that the project is in compliance with Department of Health standards for a “non-transient non-community” water system, a classification is based upon the representation that Duckhorn employs less than 25 people. (Attachment H, p. 3.) It also represented “The approved number of 56 employees, which includes 45 full-time employees, five (5) part-time employees, and six (6) harvest/seasonal employees” (Attachment H, p.1) However, in response to a 2017 Napa County survey of employers, 228 people were reported to be employed.

Duckhorn is one of only three sites in the Napa Valley reporting arsenic exceedances, a situation that LSCE states is not attributable to groundwater conditions. (LSCE 2023, ES-9.) Contrary to representations that there are no reportable quantities of hazardous wastes on the property, Duckhorn filed substantial disclosures in 2012, and offers no explanation why similar quantities of similar hazardous materials are not present now.

While it is true that a domestic water well was approved, there is no evidence that the present well proposed to be the sole source of water is an approved public water system well. In fact, the evidence suggests a nomenclature shell game with public health. Careful attention is required.

Historically, Duckhorn operated under the trade name St. Helena Wine Company. Early operations were commenced at the same site, 3072 Silverado Highway, at the corner of Silverado Trial and Lodi Lane. Napa County Department of Public Health records show that in 1976 it approved one of two existing wells for potable water uses on the site:

Water Supply – Water will be supplied by two wells on the property. A bacteriological analysis of the older well located next to Silverado Trail was made in October of 1970 and was satisfactory. The newer well next to the river was installed under inspection by this office on June 18, 1975. This supply has not been analyzed for quality. The quantity of water from the wells is adequate.

In 1986, the original approved domestic well was destroyed. The new well drilled, and the sole source of water for the public water system (Attachment H, p. 22) is stated on its face to be an irrigation well. There is no record of approval of the current well for potable use. It is unknown whether it is capable of legally performing that task.

The Bartelt WAA (Attachment H, p. 5) directs the public to the drinking water Consumer Confidence Reports maintained by the Water Board. Review of those records reveals that Duckhorn filed no reports for three years, during the period of 2017 through 2019, and that the reports submitted in 2021 and 2022 are missing their mandatory certification. Not once in six years has a fully compliant report been filed (see Exhibit 1.)

There is no indication that DDW has been notified that the project’s entire potable water supply will be provided by one well, or that the well is potentially drawing from the Napa River aquitard. (Attachment D, p. 26); See Cal. Code of Regulations tit. 22 (Cal Regs), section 64413.1, subd. (3), which requires that special water treatment consideration be given to treat groundwater derived in part from a surface water source.) Furthermore, California Code of Regulations, section 64554, subdivision (c) provides that “Community water systems using only groundwater shall have a minimum of two approved sources before being granted an initial permit.”

For the foregoing reasons, it is submitted that the DDW must be given notice of the Application.

B. The City of St. Helena.

The City of St. Helena has not reviewed or commented on the project as occurred in the with the 1976 Use Permit. The Duckhorn project is within the vicinity of several recently approved projects that potentially impact a public trust interest. Any increase in the project’s water consumption may have an adverse impact on the City’s efforts to mitigate injuries to the public trust.