Eric Biber, LEGAL PLANET
A recent controversy highlights the impacts of wine industry on native California oak woodlandsA popular San Luis Obispo county winemarker is suffering a backlash in restaurants after press reports that the winemaker bulldozed oak woodlands to expand production—possibly in violation of a county land grading ordinance.
The dispute (as this Wine Enthusiast piece makes clear) is not a novel one. There is a long history of winemakers in California converting oak woodlands to vineyards, with potentially substantial impacts on native species habitat.
Conversion of oak woodlands to agricultural use is, in fact, one of the areas where state environmental law does not provide much protection. Conversion of coniferous forests is covered by the California Forest Practices Act, which imposes regulatory requirements on conversion of timberlands to other uses. Conversion of oak woodlands to other uses besides agricultural uses requires review under the California Environmental Quality Act (CEQA) for conversion activities. Cal. Pub. Res. Code § 21083.4. CEQA requires not just a public review of the potential environmental impacts of those conversions, but may also require mitigation of those impacts. However, there is an exemption in this CEQA provision for conversion to agricultural uses.
There are two main ways in which oak woodlands might still receive some protection from conversion to agricultural uses.
First, if federally or state listed endangered animal species are present, then federal or state endangered species protections might apply. If state listed endangered plant species are present, then the habitat might also be protected from conversion—though there is some uncertainty about the scope of these protections, and whether agricultural conversions are fully covered by them. However, many oak woodlands are not habitat for any listed federal or state species.
Second, if a local government imposes some sort of discretionary restriction on land conversion—such as requiring planning commission review of conversion of oak woodlands to agricultural uses—then CEQA would apply to that review process. Of course, that depends on local governments imposing restrictions on land conversion to agricultural uses, something that varies greatly from county to county. (For instance, San Luis Obispo County apparently does not protect oak woodlands.)
Oak woodlands are an important and threatened component of the natural heritage of California—and can be habitat for a wide range of native species. Yet they have been significantly damaged by agricultural conversion, particularly for wine. California native oaks—already under attack by a rapidly expanding disease epidemic—may face even greater threats in the future. If non-medical commerce in marijuana is legalized by the voters this fall, we might see substantial expansion of marijuana cultivation at the expense of California’s oaks. It may be time for the state legislature to look at stronger protections for them.