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Vintage Turf Wars
Wine isn't the only thing that's fermenting in the Napa Valley these days. A dispute has been fizzing between vintners and environmentalists over the county's erosion control regulations, and things are coming to a head as a Sierra Club lawsuit gets set to go to court in mid-April. Unless the suit is resolved at this time, the trial is slated to begin in June. Either way, the outcome, and the battle leading up to it, will have a ripple effect on other jurisdictions that are considering enacting their own erosion controls.
That's one of the few points that the two camps agree on. The enviros paint a picture of a bucolic landscape under siege by an army of bulldozers threatening to destroy every tree, stream, and animal in sight, so that thousands of new merlot and chardonnay vines can be planted. The wine folks, however, portray themselves as stewards of the land, who have kept the Valley from being overrun by wall to wall housing developments, and who are already subject to some of the most stringent regulations in the state.
The main existing regulation is a county ordinance enacted in 1991. It regulates new vineyards, replantings, and other types of development on hillsides. The grower or developer works with the Resource Conservation District to come up with a plan to reduce the amount of soil washing into nearby streams or creeks. Projects on land with a slope of between 5-30% are given approval at the staff level. Those wanting to exceed the 30% slope limits, or other regulatory thresholds, are required to go to the planning commission - and to get a full CEQA review, including public hearings. Either side can appeal a planning commission decision to the county board of supervisors. County officials estimate that the law covers some 7,000 previously unregulated acres. Since the ordinance went into effect, about 400-500 erosion control plans have been approved, with only a handful of these going through CEQA.
The law increased the amount of work that it takes to put in a vineyard. A grower may have to install a number of structural elements. "I've just gone through the process," says vintner Robert Craig. He says he had to put in a system of underground pipes and surface ditches, as well as a catch basin designed to slow runoff velocity and improve water quality. Craig estimates that the erosion control elements added $80,000 to the cost of developing his ten acre patch of land.
According to Phill Blake of the Resource Conservation District, most new vineyards are also now required to put a cover crop between the rows of grapevines. The cover crop is mowed, not plowed under, in order to reduce soil disturbance. This non tillage system is "a major cultural shift," says Blake.
But the Sierra Club lawsuit claims that Napa isn't doing enough. It alleges that the county is "unlawfully evading" CEQA review, and asks the judge to block the approval of any more permits until the county changes its policy. The Club argues that the requirements of the ordinance can actually result in faster runoff, which increases peak flow of streams and potential erosion problems, and does little to control fine sediments getting into the water.
But the crux of the legal dispute is whether the approval is "ministerial" or "discretionary." CEQA defines a discretionary project as one that "requires the exercise of judgment or deliberation" by a public agency before it is approved or rejected. A ministerial one, however, uses only fixed standards or measurements, and doesn't allow for any judgment calls by officials. It's more than a semantic squabble. A ministerial project doesn't trigger the CEQA requirements for public hearings and a possible full environmental review; a discretionary one does. The lawsuit says that Napa officials use "discretion" in deciding to approve a project, thus putting it under the purview of CEQA.
"It's always a better process," says Chris Malan a board member of the Club's Napa chapter. "CEQA is a tool to help the environment." Public input is especially important, she says. CEQA gives people a chance to ask questions about a project, press for mitigations, and consult experts in different fields, such as biology and habitat issues. She says that planners are often not knowledgeable in those fields, and focus their evaluations on erosion and engineering solutions to problems.
"We're not opposed to (public input) except for one thing," responds Craig. Appeals go to the board of supervisors, who are more likely to make a decision on a project's political rather than its scientific or environmental merits. "If enough people get up and shout," he says, noting that Napa County's population is about 120,000, "a hundred people can sound like a majority." Craig also objects to CEQA provisions that mandate an evaluation of the cumulative impacts of a project - an expensive and time consuming process. The growers fear that, even if an individual project is small and will have no adverse impacts by itself, the potential cumulative impacts of it and other projects in the area could trigger requirements for a full EIR.
That's the way it should be, the environmentalists reply. "You could convert every square foot of the landscape over a given period without realizing you had done anything to alter the wildlife habitat," says attorney Thomas Lippe, who represents the Club. Likewise, the increased runoff from a new vineyard may be minimal, but put together with others in the area it may have a major impact on water quality in nearby streams. The growers say the environmentalists lack scientific data to back up their claims, and that relatively little land - about 4,000 acres - is actually suitable for future vineyard development in the Valley. (There are currently 37,000 acres planted with vines.) They also say that Napa is being unfairly punished for taking a progressive approach to solving its environmental problems, and that a county appointed Watershed Task Force is a better forum for making changes in the ordinance. The Task Force, which has members representing both growers and environmentalists, has already spent nearly $200,000, and is trying to come up with a comprehensive set of recommendations dealing with water quality issues.
Blake says that much of the opposition comes from folks who moved into woodland hillside areas, and are upset by the sight and sound of chain saws cutting away the forest for vineyards. "They feel like its robbing them of the kind of environment and ambiance they moved there for." The debate has become extremely emotional. Malan says that bulldozers often recontour the land to make it more suitable for grapes. "They completely change the landscape. That property is damaged hundreds of years into the future."
"We're not going to kill our own soil - that's our livelihood," Craig responds. He also thinks that the environmentalists don't acknowledge how much growers have done to preserve the rural character of the Valley. Grapes and wine are the only economically viable commodity for the Napa region, he says, and without the vineyards the whole area would have been turned into subdivisions decades ago. Even though at press time a judge has yet to make a single ruling, the effects of the lawsuit are being felt outside the county. State Senator Don Perata (D-Alameda County) sponsored SB 1810, which would have exempted new and replanted vineyards from CEQA, but later tabled it after opposition from environmentalists and little support from growers.
After lengthy debate, Sonoma County passed its own vineyard ordinance, the Erosion and Sedimentation Control Act. Environmentalists have mixed feelings about the new law, which went into effect March 9. They like the fact that it includes sections dealing with increases in runoff, but say that other provisions, such as allowing growers to plant vines to within 25 feet of a creek, are not limiting enough.
Most of the wrangling was between vineyard owners and environmentalists, but many of the provisions of the final ordinance were included because of the Napa lawsuit, according to Gail Davis, of the Sonoma Agriculture Commissioner's Office. "That really drove the changes," she said. Early drafts would have given the county discretion over approval of vineyard plans. The final version, however, mandates a very different process. The county will maintain a list of qualified engineers, who will certify the growers' plans. Davis will check the paperwork to make sure it is in order, and do a site visit in order to see if the plans are being followed. She can't reject a properly certified plan or ask for changes in one. "There's no discretion on the part of the county." By taking that approach, the approval process is purely ministerial, and "CEQA proof," she says.
The Napa suit may also be slowing down the passage of legislation in other counties, such as Santa Barbara and San Luis Obispo, which are under intense vineyard development pressure. "Nobody wants to get into the situation of Napa," says Davis.
Napa planning director Jeffrey Redding agrees. "We're finding that those who were thinking about it have backed off." Redding says that "time will tell" if the suit's long term effect is actually less, not more, regulation of vineyards. "I'd be really disappointed if that was the outcome."
John Stephens, chair of Napa's Sierra Club chapter is unapologetic. "Do we stop doing what we're doing just because of what someone else is doing?" he asks. In February, the county sent out letters informing permit applicants that approval was on hold until "the necessary CEQA review" (i.e., an initial study) was completed. Stephens says that the suit won't be dropped unless a formal policy calling for CEQA review of all vineyard projects on hillsides is adopted. He wants the case to go to trial, so it can set a statewide precedent that all counties will have to follow. "Agriculture has to be under CEQA. That's where I hope it's headed."
Contact: Chris Malan (707)255-7434 or Phill Blake (707)252-4189
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