High-profile prosecutions relating to unauthorized fill of wetlands, excessive runoff in violation of Regional Water Quality Control Board (RWQCB) standards, and violation of the "take" provisions and/or critical habitat designations of the Endangered Species Act (ESA) have further raised the level of scrutiny for vineyards and other agricultural uses. Wineries and growers are well advised to evaluate and understand early in the process the environmental and land use issues relating to their property.
Key issues
Key issues for wineries and growers include the following:
• Grading and erosion control -- An increase in hillside vineyard development and erosion from grading is causing local governments to rethink how vineyard projects are evaluated. Although hillside ordinances already place limitations on vineyard development, some agencies are questioning whether these requirements go far enough. In Sonoma County, for example, the Board of Supervisors is considering adding viticulture and agriculture activities to its grading ordinance. This could require all vineyard projects to obtain grading permits and comply with the Uniform Building Code grading standards. This requirement may also subject vineyard projects to environmental review.
The board heard comments on this proposal on June 17 and is setting up an advisory committee to help shape a new grading ordinance. The committee, which will include representatives from the farm community and environmental groups, will work with county supervisors and staff over the new few months to craft an acceptable proposal.
In Napa County, the Board of Supervisors has placed a moratorium on any new development and agricultural operations within 150 feet of creeks and streams where fish may be present to avoid potential erosion impacts. A proposal for a permanent moratorium will be heard by the board in August.
• Threatened or endangered species -- This month, the Fish and Wildlife Service must decide whether to grant Sonoma County's tiger salamander emergency status as an endangered species. If granted, this status will dramatically impact development and agriculture by essentially halting all projects within designated habitat areas for up to 18 months while the agency decides whether to permanently list the salamander.
Most wineries and growers have heard the horror stories surrounding the discovery of a threatened or endangered species on a project site. One less familiar aspect of the ESA is the designation of "critical habitat," or an area essential to the survival of an endangered or threatened species, regardless of whether or not the species is located in the area. Just last year, millions of acres, both public and private, were designated as critical habitat. While the exact impact of this designation is subject to debate, wineries and growers should be aware that such a designation is likely to severely constrain their development or use of their property.
• California Environmental Quality Act review -- While many farming and agricultural operations have historically been considered to be exempt from CEQA review, many jurisdictions, including Napa and Sonoma counties, are now requiring environmental review for certain types of operations. This, together with the trend of some local agencies to require an Environmental Impact Report (EIR) instead of a Negative Declaration, has resulted in substantial increases in processing time and costs.
• Wetlands -- Many agricultural operators can attest to the difficulty of obtaining necessary agency approval to allow the fill of wetlands. The debate over what constitutes a "wetland" and what constitutes "fill" continues. In 2001, the U.S. Supreme Court restricted the regulatory jurisdiction of the Clean Water Act (CWA) by ruling that non-navigable, isolated, intrastate waters were not subject to the CWA. Accordingly, it may be possible to argue that isolated pockets of wetlands are not subject to regulation by the Army Corps of Engineers and other regulatory agencies. However, early identification and evaluation of possible wetland areas is critical to avoiding substantial future delays.
• Water supply -- Recently enacted legislation now requires projects to identify and lock in their water supply before project approval. This indicates a growing trend in California to require projects, including agriculture projects, to provide evidence of sufficient water supply prior to project approval. While the recent legislation generally applies only to "large" developments, the requirement to identify and secure water sources will apply to all proposed projects.
• Tree preservation -- Many jurisdictions in Northern California require preservation of native trees, especially oaks. For example, Sonoma County has restrictions on destroying valley oaks in certain areas. Even with these controls, the increasing encroachment of development on ranch lands has heightened environmental groups' scrutiny regarding development and tree preservation.
• Lot line adjustments -- Recent changes to the Subdivision Map Act limit the number of lot line adjustments to four or fewer "adjoining" parcels. Previously adjustments were allowed to "adjacent" parcels. Narrowing of the language to adjoining parcels will limit lot line adjustments to contiguous parcels, whereas previous law permitted adjustments to parcels near but not necessarily touching each other. In addition, under recently passed legislation, lot line adjustments are now subject to the requirements of applicable general plans, zoning ordinances, and coastal plans.
• Sonoma County General Plan update -- Sonoma County is presently updating its General Plan, including the Agricultural Element. One major issue under consideration is the extent of visitor-serving and -support uses, such as tasting rooms and resorts on agricultural lands. If the uses of agricultural lands are expanded to include resort and recreational uses, one can expect even more stringent environmental review of not only these projects but of wineries and growers in general. A Citizen Advisory Committee formed for the General Plan update is currently debating this issue, and public participation is encouraged.
• Vineyard development fees -- Sonoma County has just approved a 75% increase in the cost of obtaining a county permit for new vineyard development. These fees are designed to cover the costs of vineyard compliance with erosion and sediment control measures and reflect the anticipated drop in vineyard applications.
A need to be proactive
For years, agriculture users have kept their heads down, hoping to fly under environmentalists' radar screens. Those days, however, are gone. Wineries and growers must begin to arm themselves with knowledge about potential environmental problems facing vineyard and winery projects and tackle them head on or suffer projects delays or derailment. By being proactive and hiring good experts, consultants, and counsel at the beginning of a project, wineries and growers should be able to successfully manage any environmental or land use problems associated with these projects.