Judge Declares Russian River Frost Protection Regulation Constitutionally Void

On September 26^th, 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.

Related Stories:

Judge Stays Enforcement of Russian River Frost Control Regulation

KMTG Legal Alert: Frost Protection Water Use in Russian River Watershed, Even by Groundwater Pumpers, Now Conditional on SWRCB Approval of a Water Demand Management Program

Judge Stays Enforcement of Russian River Frost Control Regulation

According to newspaper reports (here and here), a Mendocino County Superior Court Judge has granted a grape grower’s request to stay the Russian River Frost Control Regulation until the legality of the Regulation is determined. KMTG staff contacted the Court Clerk’s office to obtain a copy of the Court's order and was advised that Judge Ann Moorman has taken the stay request under submission and will provide the parties with a written order. Judge Moorman presides over the civil lawsuit filed by Rudolph Light, a Redwood Valley grape grower, challenging the legality of the Frost Control Regulation adopted by the State Water Resources Control Board (Board) late last year.

As we previously reported, the Frost Control Regulation seeks to regulate the diversion of water from the Russian River stream system for the purposes of frost protection, by requiring diverters to develop a detailed Water Demand Management Program (WDMP). Under the Regulation, diverters who use water for frost protection, such as grape growers, were required to submit a WDMP to the Board by February 1st, which must be approved by the Board before water could be diverted for frost protection. The purpose of the Regulation is to monitor and coordinate frost protection water diversions so that peaks in water demand can be mitigated, to avoid the stranding of salmonids resulting from rapid declines in stream flow.

Last week's news reports indicate that Judge Moorman decided to postpone the enforcement of the Frost Control Regulation until the court rules on the legality of the challenged Regulation. A stay would mean that Russian River farmers will not be required to comply with the new Regulation while the lawsuit challenging the legality of the Regulation remains pending.

For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

KMTG Legal Alert: Frost Protection Water Use in Russian River Watershed, Even by Groundwater Pumpers, Now Conditional on SWRCB Approval of a Water Demand Management Program

On December 29, 2011, the California Office of Administrative Law approved the addition of a Frost Control Regulation (“Regulation”), effective immediately, requiring that diversion of water from the Russian River stream system for the purposes of frost protection between March 15 and May 15, is conditional on prior approval by the State Water Resources Control Board ("SWRCB") of a detailed Water Demand Management Program ("WDMP"). Only diversions upstream of Warm Springs Dam in Sonoma County or Coyote Dam in Mendocino County are exempt from the WDMP requirements. The Regulation is available here.

The SWRCB developed the Regulation to protect salmonids from the threat of stranding that could occur when stream flows and depths decrease rapidly due to high instantaneous demand for water for frost protection during a frost. The Regulation aims to avoid stranding mortality by requiring vineyard owners to manage their diversions to coordinate and reduce instantaneous demand.

For a detailed discussion of the Regulation, please see the full KMTG Legal Alert here.

If you have any questions concerning this topic, please contact Janet K. Goldsmith or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

State Water Resources Control Board Adopts Russian River Frost Protection Regulation

On Tuesday, September 20, 2011, the State Water Resources Control Board adopted a new regulation governing the diversion of water for frost protection in the Russian River stream system.  Under the regulation, any diversion of water, or pumping of hydraulically connected groundwater, within the Russian River system for frost protection purposes from March 15 through May 15 must be done in accordance with a Board-approved water demand management program (WDMP).  Diversions upstream of Coyote Dam or Warm Springs Dam are exempt from this requirement.  The regulation is codified as Section 862 of Division 3 of Title 23 of the California Code of Regulations.  A copy is available here.

The first WDMPs must be submitted to the State Water Board by February 1, 2012.  Any amendments are due by February 1 prior to each frost season.

The regulation states that the purpose of the WDMP is to "assess the extent to which diversions for frost protection affect stream stage and manage diversions to prevent cumulative diversions for frost protection from causing a reduction in stream stage that causes stranding mortality" of fish.  Each WDMP must include, at a minimum "(1) an inventory of frost diversion system in the area covered by the plan, (2) a stream stage monitoring program, (3) an assessment of the potential risk of stranding mortality due to frost diversions, (4) the identification and timelines for implementation of any corrective actions necessary to prevent stranding mortality caused by frost diversions, and (5) annual reporting of program data, activities, and results."

While individual diverters are not required to join a larger WDMP, the regulation appears to contemplate that multiple diverters will join together and adopt plans administered by a governing body.  However, each diverter must have a plan, whether individually or as part of a group.  Failure to adopt and submit a WDMP, or failure to implement the WDMP, particularly any corrective actions, could subject the diverter to State Water Board enforcement action.

If you have any questions concerning this regulation, please contact Andrew Tauriainen, or the KMTG attorney with whom you normally consult.