Wednesday, September 26, 2012

Judge Declares Russian River Frost Protection Regulation Constitutionally Void

On September 26th, 2012, a Mendocino County Superior Court judge declared the Russian River frost protection regulation adopted by the State Water Resources Control Board ("State Water Board") in 2009 to be constitutionally void.  In the consolidated actions of Light v. State Water Resources Control Board and Russian River Water Users For The Environment v. State Water Resources Control Board (Case No. SCUK-CVG-11-59127), Judge Ann Moorman issued an order invalidating the frost protection regulation on several grounds.

The invalidated frost protection regulation declared the use of water within the Russian River watershed for frost protection purposes to be an unreasonable use of water, unless such use of water is in accordance with a water demand management program, approved by the State Water Board.  Water use for frost protection is a recognized beneficial use of water under California law, and Judge Moorman found that sprinklers are the only effective method available to Russian River farmers and vineyard owners to protect against certain frost events, known as advective frosts.   The regulation sought to limit water use for frost protection, based on concerns regarding impacts to fish from rapid decreases in river levels that can occur when there is a spike in such water use during frost events.  In reviewing the administrative record for the regulation, Judge Moorman found that the regulation was largely a response to an unprecedented set of circumstances in the Spring of 2008, which led to an instantaneous draw-down of Russian River water levels and two reports of stranding of young salmonid fish. 

The court concluded that the State Water Board exceeded its regulatory jurisdiction in adopting a regulation that declared water use for frost protection to be a per se unreasonable use of water.  Judge Moorman emphasized that the policy declaration of “reasonable use” in Article X, section 2 of the California Constitution is both a limit on water rights, and a protection of water rights.  The court concluded that the frost protection regulation was constitutionally void because the State Water Board failed to examine or make findings regarding each riparian and pre-1914 water right holder’s individual water use, and instead enacted a blanket regulation that treated all water users the same.  Judge Moorman concluded that the law clearly requires the State Water Board to make specific findings regarding water use by riparian, overlying, and pre-1914 water right holders before extinguishing their right to use water.

In addition, the court concluded it was improper for the State Water Board to make a sweeping determination that water use for frost protection was unreasonable and the Board’s failure to make findings regarding individual water use and the correlative risk to salmonids provided a separate ground for invalidating the regulation.

The judge also concluded that the regulation was invalid because it failed to provide for enforcement of the rule of priority for California water rights and also because it improperly delegated State Water Board functions to private boards established under the regulation.  Finally, the judge concluded that the State Water Board’s determination that the regulation was reasonably necessary was not supported by substantial evidence.

For additional information regarding the frost protection regulation and related litigation, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

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