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.