Home Wine Business Editorial Ignorance of the Endangered Species Act Could be Costly for Vineyards and...

Ignorance of the Endangered Species Act Could be Costly for Vineyards and Wineries

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By Elizabeth Hans McCrone

Diane Kindermann
Diane G. Kindermann Henderson – Attorney Partner, Abbott & Kindermann

When President Nixon signed the Endangered Species Act (ESA) into law on December 28, 1973, it must have been hard to predict how the legislation would impact agricultural practices decades into the future.

At the time, Nixon declared that conservation efforts aimed at preventing the extinction of species were inadequate and that the ESA “… grants the Government both the authority to make early identification of endangered species and the means to act quickly and thoroughly to save them from extinction.” (http://www.presidency.ucsb.edu/ws/index.php?pid=4090)

More than forty years later, the wine industry is still grappling with what, exactly, the law means and how it affects their ability to do business.

“It affects land use and animals, sediment in creeks, spawning beds, stream flows and fish … as well as endangered plants and the need to preserve or mitigate. It’s a big liability,” states Nick Frey, Public Relations and Brand Ambassador for Balletto Vineyards.

Frey notes that while both wineries and vineyard owners are subject to ESA regulation, it’s growers that need to be particularly alert to what the Act means to vineyard operations – and not only at the federal level.

“In order to plant a vineyard in Sonoma County, you need to have a permit, and that means coordinating with a number of agencies, locally and from the state,” Frey contends. “Those agencies can offer habitat conservation plans that cost millions of dollars and take years to implement, which just isn’t feasible … It can be really difficult to work through the morass.”

In order to help industry professionals make sense of such regulatory complexities, the Wine Industry Network (WIN) is devoting a conference session to this topic at the upcoming North Coast Wine Industry Expo called  “Wine and the Endangered Species Act (ESA): Avoid Pitfalls and Successfully Navigate Current Policy.”

Frey, also the former President of the Sonoma County Winegrape Commission, will be the session moderator. Dianne Kindermann Henderson, attorney partner with Abbott & Kindermann, is one of the panelists.

“The federal and state ESAs prohibit and tightly regulate otherwise legal land uses such as farming and development, with no compensation for loss of that use,” Kindermann Henderson attests. “It’s important to know about the ESAs because they are punitive in nature and fines can be attached for violations. It’s also important (to know about them) if you want to provide protected habitat on your property.”

Kindermann Henderson, who has been practicing in the area of environmental land use and real estate law since 1989, says one of the topics she plans to focus on during the conference session is the importance of handling an onsite visit from a government agency.

“I intend to give specific tips on how you and your staff should handle a site visit with a regulator within the several different contexts in which these site visits arise,” explains Kindermann Henderson. “I will also provide guidance on how to prepare a simple, internal, regulatory response policy document/checklist that can be used to prepare yourself and your employees for such a visit.”

NCWIE Session 4
Wine and the Endangered Species Act (ESA): Avoid Pitfalls and Successfully Navigate Current Policy. December 4. 2014, Sonoma County Fairgrounds

Kindermann Henderson and Frey will be joined by Peter J. Kiel, partner at Ellison, Schneider & Harris L.L.P.; Ted P. Winfield, Ph.D., who is Sole Proprietor of Ted Winfield & Associates; and Tony Linegar, Agricultural Commissioner/Sealer of Weights and Measures for Sonoma County.

Kiel will examine the ESA from a legal perspective and provide insight into the specifics of what vineyard and winery owners need to be aware of.

Winfield, who holds a Ph.D. in biology and is a wine industry consultant on environmental issues, will address compliance with the Clean Water Act, Endangered Species Act and other environmental statues.

Linegar will address regulatory compliance issues based on his experience as current Chair for the Agricultural Commissioner and Sealers Association’s Food and Resource Protection Committee and a previous term on the State Board of Directors of Agricultural Commissioners.

For his part, Nick Frey can’t stress enough how important it is for industry professionals to arm themselves with plenty of information about environmental regulation at all government levels.

Noting that violation penalties can range between $25,000 – $50,000 per incident, Frey warns that, “Growers (and wineries) need to be informed, because if you’re not informed and you make a mistake, it could be very costly.”

For information and conference registration go to: http://www.wineindustryexpo.com/conference.php

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