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

State Water Resources Control Board Issues Draft Order Staying Provisions of Central Coast Agricultural Order

On September 10, 2012, the State Water Resources Control Board (“State Board”) issued a Draft Order which, if adopted, will stay certain provisions of the agricultural order and related monitoring and reporting program orders issued by the Central Coast Regional Water Quality Control Board (“Regional Board”). The State Board received five petitions for review of the Regional Board’s Order No. R3-2012-0011, Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands (“Agricultural Order”), and Monitoring and Reporting Program Orders Nos. R3-2012-0011-01, R3-2012-0011-02, and R3-2012-0011-03 (“Monitoring and Reporting Orders”). A copy of the Agricultural Order and Monitoring and Reporting Orders are available here. In addition to petitioning for State Board review of those orders, the petitioners also requested that the State Board stay all or certain provisions of the orders, pending State Board review.

The Draft Order stays the following requirements and compliance deadlines of the Agricultural Order and Monitoring and Reporting Program Orders:

• the compliance deadline for installation of backflow prevention devices (stayed until March 1, 2013);
• the requirements related to containment structures (stayed until the petitions for review are resolved);
• the requirements related to practice effectiveness verification (stayed until the petitions for review are resolved);
• the requirements related to calculation of nitrate loading risk factors and crop nitrogen uptake (stayed until the petitions for review are resolved); and
• the compliance deadline for photo monitoring of streams and riparian and wetland area habitat (stayed until June 1, 2013).

The Draft Order states that the State Board expects to resolve the petitions for review by October 2013.

The comment deadline on the Draft Order will be September 14, 2012, by noon. The final State Board stay order is scheduled for adoption at the State Board’s September 19, 2012, public meeting. 

For additional information regarding the State Board’s Draft Order, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information is also available through the State Board website.

Related Story:

State Water Resources Control Board Decides To Stay Provisions Of Central Coast Agricultural Order

Delta Stewardship Council Will Consider Proposed Final Draft Of Delta Plan

The Delta Stewardship Council (Council) will consider the proposed final draft of the Delta Plan at its September 13, 2012, meeting.  The Delta Plan is a comprehensive, long-term management plan for the Sacramento-San Joaquin River Delta (Delta), consisting of a mix of legally-enforceable “policies” and guiding “recommendations.”  State and local agencies undertaking actions covered by the Delta Plan will be required to file a certification of consistency with the Council, to ensure that the “covered action” is consistent with the applicable Delta Plan policies.

For more information concerning the Delta Plan, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Story:

Delta Stewardship Council To Discuss Final Staff Draft Of Delta Plan

Ninth Circuit Heard Oral Argument in the Consolidated Delta Smelt Cases

On September 10, 2012, the United States Court of Appeals for the Ninth Circuit heard approximately an hour of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  An audio recording of the oral argument is available here.

The Ninth Circuit panel, comprised of Ninth Circuit judges Johnnie Rawlinson and Jay Bybee, and Eighth Circuit Judge Morris Arnold (sitting by designation), heard oral argument from Department of Justice attorney Robert Oakley (representing Federal defendants), Natural Resources Defense Council attorney Katherine Poole (representing the Natural Resources Defense Council and The Bay Institute), Best Best & Krieger LLP attorney Gregory Wilkinson (representing the State Water Contractors), Kronick Moskovitz Tiedemann & Girard attorney Daniel O’Hanlon (representing San Luis & Delta-Mendota Water Authority and Westlands Water District), and California Deputy Attorney General Clifford Lee (representing the California Department of Water Resources). 

The appeals are now under submission and the parties are awaiting the Ninth Circuit’s opinion. 

Related Stories:

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases
Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

State Water Resources Control Board Decides To Stay Provisions Of Central Coast Agricultural Order

Following its August 30, 2012 hearing, the State Water Resources Control Board (“State Board”) decided to stay or extend the compliance deadline for some provisions of the agricultural order and related monitoring and reporting program orders issued by the Central Coast Regional Water Quality Control Board (“Regional Board”). The State Board received five petitions for review of the Regional Board’s Order No. R3-2012-0011, Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands (“Agricultural Order”), and Monitoring and Reporting Program Orders Nos. R3-2012-0011-01, R3-2012-0011-02, and R3-2012-0011-03 (“Monitoring and Reporting Orders”). A copy of the Agricultural Order and Monitoring and Reporting Orders are available here. In addition to petitioning for State Board review of those orders, the petitioners also requested that the State Board stay all or certain provisions of the orders, pending State Board review.

The Agricultural Order regulates both landowners and operators of irrigated lands within the Central Coast region where water is applied for producing commercial crops, from which runoff could affect water quality. Under the Agricultural Order, growers are categorized in tiers, based on the risk their farms pose to ground and surface water. The Agricultural Order scales the monitoring and reporting requirements into three tiers and imposes more requirements for the higher tiers. Each tier has a corresponding Monitoring and Reporting Order, which specifies the monitoring and reporting requirements that apply to that tier. All of the tiers are required to develop and implement a Farm Water Quality Management Plan and to collect monthly water samples from receiving waters. Several of the monitoring and reporting requirements have a compliance deadline of October 1, 2012.

After the August 30th hearing regarding the stay requests, the State Board decided to stay or extend the deadline for some provisions of the Agricultural Order and the Monitoring and Reporting Orders, but the State Board did not indicate which provisions would be stayed or extended. The State Board will release a draft order regarding its stay decision on September 10, 2012. The comment deadline on the draft order will be September 14, 2012, by noon. The final State Board stay order is scheduled for adoption at the State Board’s September 19, 2012, public meeting.

For additional information regarding the State Board’s stay decision, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information is also available through the State Board website.