From: Kimberly Burr
Attorney at Law

April 26, 1999

To: Sonoma County Board of Supervisors
575 Administration Drive
Santa Rosa, CA 95407

Dear Members of the Board:

The creation and implementation of a Hillside Vineyard Ordinance is a discretionary project proposed to be carried out or approved by a public agency. There is substantial evidence that the project may have a significant effect on the environment. We the undersigned request, therefore that an initial study be conducted and made available to the public for public review and comment.

Effect of Ordinance may well be Less Protection of the Environment

1) A permitting process sets up the presumption that before the permit is issued, the public's interest has been protected and that the adverse environmental impacts have been addressed. This is how it should be. Unfortunately, this ordinance sets up that presumption but is woefully inadequate to protect fisheries, natural areas, riparian corridors, biodiversity, oak woodlands, and even steep slope developments. By far the most surprising and most harmful aspect of this ordinance is that the public and the public's agency in charge of supervising development will have their hands tied. The ordinance takes the planning department out of the process and offers a shield to large vineyard developers.

2) The main benefit that proponents of the ordinance claim is that an increased numbers of creeks will be protected by riparian setbacks. Many biologically important creeks were left out of the ordinance. The purported set backs range from 25 to 50 feet. The National Marine Fisheries Service guidelines for protection of the listed coho salmon, however recommends streamside protections of at least 300 feet. This ordinance instead of offering real protections for the threatened fisheries, weakens the standard set in the NMFS guidelines.

a.) In addition, the "setbacks" on only some creeks do not prohibit tractor use within their boundaries and do not prevent removal of important successional vegetation. High ambient air temperatures as well as direct sun light are the most lethal impacts to fish. Although arguably the single biggest contributor of sediment to watercourses, seasonal (third class) creeks are left completely unprotected. b.) The draft ordinance, furthermore even allows for a reduction of the already inadequate set back in some situations. The Agricultural Commissioner may reduce setbacks if in its opinion the watercourse can still be protected as intended. This is an unecessary component of the ordinance that serves only to weaken it further. Even in the limited sense of attempting to protect some watercourses, this ordinance falls tragically short.

3) Although the ordinance appears to offer new protection to slopes over fifty percent, these slopes were never in real danger of development. As the grape growers explained, tractors and bull dozers can not be operated safely on ìactualî slopes over fifty percent. The hillsides that would have been developed before this ordinance will still be subject to development even if the ordinance is passed. A prohibition, therefore on development on slopes over an "average" of fifty percent slope is absolutely no additional protection to the hillsides.

The Sonoma County Agricultural Commissioner - the agency charged with implementing the new law raised serious concern over the effectiveness of a system that allows averaging of slopes. Steep areas, under this scheme can still be developed under this scheme. Averaging of slopes undermines the effectiveness of the law and makes it difficult if not impossible to implement with any accuracy whatsoever. The impacts and implications of the averaging component must be studied.

4) Public review of large development projects has been and continues to be a critical component of environmental protection . This ordinance provides for no public review and no public comment. It is not the law alone, generally speaking, that offers real protections, it is its implementation and enforcement. This is where the public becomes indispensable. As a whole, this ordinance, while purporting to protect the environment, actually makes it more difficult for the public to review the high impact vineyard developments. The Agricultural Commissioner will not have the power to protect Sonoma County from the cumulative impacts of clearing of hundreds of acres of land, knocking down and removing natural rock outcroppings and habitat areas, cutting down of mature trees, heating up a microclimate, and rearranging the landscape features.

Not only did the Agricultural commissioner express serious concerns about the ordinance, the California Fish and Game Department and the Napa Resource Conservation District also expressed concerns over its ability to provide environmental protection.

Briefly, many terms are left undefined and the development guidelines, upon which much of the ordinance rely, have not been made public. The ordinance contains terms with significant contradictory legal meaning. It is inconsistent to state, for example that an applicant "shall" follow "guidelines." The draft ordinance appears on its face to be discriminatory. A study needs to be conducted that compares the current level of development, its impacts, the requirement of grading permits, biotic resource set backs, and the current restrictions to the level of development under this ordinance (the nature of the public review process, increase in acres developed, pesticide increase, applicability of CEQA, etc...).

In conclusion, this ordinance, as drafted, will have no meaningful protections to Sonoma County's hillside. To the contrary, the ordinance will arm the development community with a shield against public review and comment. It will provide a false sense of security contributing to lack of public participation in the process. Because the public has in the past shown great concern over the rapid increase in large vineyards, this is a serious consequence. The public has been clear that they are not willing to trade in the natural beauty and biologic resources of the county for vast new vineyard developments, massive habitat destruction, and disappearing seasonal watercourses.

Much about this ordinance must be studied, the public must be informed, and given the opportunity to review and comment. Please consider publishing the final ordinance and circulating it for a minimum of thirty days for public comment before approval.

Currently, vineyard developers may be required to obtain a grading permit, a Fish and Game permit, a logging plan, or even an Environmental Impact Report. It extremely worrisome that these opportunities for needed public review may be reduced or made more difficult to realize.