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Species Issues Tested in the Vineyards

10/20/2008 Articles

Wine industry directly feeling impact of water, salamander protections

Published in the North Bay Business Journal

The Northern California wine industry has become a key laboratory for significant nationwide trends in endangered-species regulation. The prominent national and California species issues that have developed recently - the continuing decline of many endangered species, the incremental impacts of global climate change and the evolving endangered species regulatory framework - are beginning to have dramatic effects on wine growers and the wine industry in general.

On a national level, although there have been some success stories - such as the bald eagle's recovery - many threatened and endangered species have continued to decline in number. As a result, the fish and wildlife regulatory agencies are continuously adding new species to the protected list and designating areas on public and private land as their critical habitat. In May 2008, under court pressure, the U.S. Fish & Wildlife Service took the landmark step of adding the polar bear to the federal endangered species list, not because it currently meets endangerment criteria, but because it is expected to become threatened soon due to global climate change.

These species trends have provoked a variety of governmental and court developments, both for and against species protection. In Washington, the Bush Administration has proposed streamlined agency rules that are designed to make it easier to navigate the endangered species permitting scheme. These rules are controversial and may not be supported by a new administration.

A landslide of conflicting legal claims has resulted from the polar bear listing (industry groups are challenging it and environmentalists believe it does not go far enough) and everyone is wrestling with the challenge of incorporating long-term climate change into species protection law.

California's Legislature, executive branch and courts remain firm in their protection of endangered species as evidenced by a variety of legislation, rules and judicial decisions.

These trends are having specific impacts on the Northern California wine industry.

First, the crucial intersection of water availability and protected fish is increasingly becoming a problem for grape growers. The recent collapse of West Coast salmon runs and the resulting shutdown of the salmon fishing season in California this year have focused renewed attention on the importance of preserving sufficient water flows for these fish.

Many Northern California vineyards draw water from the same streams that support these fish, particularly from the Russian River system, which supplies water for the Sonoma, Napa and Mendocino grape industry. As a result, the State Water Resources Control Board, which issues permits to appropriate California surface waters, is working on a new, controversial policy to preserve streamflows for fish. If the water board's current policy proposal is adopted, it is expected to dramatically reduce the water available for vineyards.

A second key development relates to the California tiger salamander, a federally endangered amphibian that has a particular affinity for vineyard environments. This salamander is present in the Santa Rosa Plain and any project, including a vineyard project, that will adversely affect the salamander must receive advance approval from the federal wildlife service before proceeding. In December 2005 many stakeholders - local governments, federal and state agencies and key citizen groups - reached written agreement on a conservation strategy for balancing development in this area with protection of the salamander.

However, the strategy's implementation has been stalled - and perhaps halted - by lack of funding and lack of consensus on the best path forward. If this effort implodes and as the salamander listing spreads to other counties, it will be time-consuming and expensive for many vineyards to receive the necessary federal salamander clearances.

Third, similar species issues are playing out for vineyards throughout California. For example, the California red-legged frog, a federally threatened species, is often found to be present in coastal riparian areas and often requires federal agency approvals before certain types of vineyard projects can go forward. Wine industry projects throughout Northern California are being increasingly affected by other listed species, including the San Joaquin kit fox and bird species.

Finally, the wine industry needs to keep a close eye on the interrelationship of climate change and species issues. In California, a government Climate Action Team report analyzed the anticipated effects of climate change based on different scenarios. Among other things, the scenarios predict, by the end of the century, a huge increase in the number of critically dry years, a 30 percent to 60 percent loss in Sierra snowpack under even the mildest scenario and a six- to 30-inch sea-level rise.

These changes will lead to earlier snowmelt, runoff and streamflow highs, thus creating a larger water shortfall for the wine business and increased water competition with endangered fish.

In short, the Northern California wine business, due to its essential connection with the land and its dependence on water, is greatly impacted by endangered species issues and reflects, in a microcosm, important trends occurring on national and global levels.

Skip Spaulding is a partner at Farella Braun & Martel, a law firm with offices in San Francisco and St. Helena. He has more than 25 years of experience in providing water, species and environmental advice and litigation services to the wine industry. He can be reached at [email protected].

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