Court ruling in frost case backs farmers


Issue Date: October 10, 2012
By Steve Adler

In a decision hailed as a victory by agricultural water users, a Mendocino County Superior Court judge has ruled that the state overstepped its bounds in trying to impose severely restrictive regulations on the use of sprinkler irrigation to protect vines from springtime frost.

Judge Ann Moorman ruled in late September that new frost protection regulations imposed by the State Water Resources Control Board are unconstitutional. Specifically, she ruled the board exceeded its authority by adopting regulations that failed to follow the appropriate process to determine "unreasonableness"; that the regulations were too broad because they included all classes of water rights holders; that they failed to provide for the rule of priority; that the board improperly delegated authority; and that the action was not supported by substantial evidence in the record.

The state has 60 days to appeal the ruling.

The board originally adopted the regulation in 2011. It would have severely restricted water use for frost protection between March 15 and May 15, the months in which grapevines are emerging from winter dormancy and are most vulnerable to frost damage.

The regulations would have gone into effect last March, but in February, Moorman issued a preliminary injunction delaying implementation pending the result of a combined trial that involved two challenges to the regulation.

The two cases were filed in October 2011 by Rudy and Linda Light, winegrape growers in Mendocino County, and the Russian River Water Users for the Environment, a group of winegrape and pear growers in Sonoma and Mendocino counties.

The water-use issue originally surfaced following a series of unusually frigid nights in the spring of 2008. Farmers used irrigation to protect vines from frost, which coincided with two instances of salmonid strandings totaling 41 juveniles. Based upon these two instances, government biologists argued that water diversions reduced flows in the river and tributaries, which may have stranded thousands of fish throughout the watershed.

The judge specifically rejected this extrapolation and instead pointed to voluntary actions farmers had taken prior to the board's adoption of the regulation, intended to eliminate any impacts frost protection may have had where fish strandings were documented.

California Farm Bureau Federation Associate Counsel Jack Rice called the decision "very thorough and well-considered" and said it has important implications for water users.

"The SWRCB regulation would have significantly impaired the integrity of water rights by using the reasonable-use doctrine to restrict water use on the basis of poor science and anecdotes," Rice said. "The board attempted to use this regulation to gain control of water rights and force the water users to prove their reasonableness. The judge recognized these flaws, along with the active efforts of farmers to fix problems where they existed."

Rice pointed to two important lessons from the case.

"First, it is absolutely essential to get involved and stay involved in these issues, even if it takes years. Second, we must continue to be proactive by working collaboratively to address resource issues when they arise," he said. "While this ruling is important for water rights, it will not distract us from continuing to work with the SWRCB, resource agencies and other stakeholders to address fishery concerns."

Devon Jones, executive director of the Mendocino County Farm Bureau, called the outcome of the case "a huge reward to the many individuals in the agricultural community who invested time and monetary resources over the past three years to develop a solution to maintain the use of water within the Russian River watershed for frost protection, while concurrently attempting to better understand the needs of fishery resources."

Dave Koball, vineyard manager for Fetzer Vineyards and chairman of the MCFB water committee, said he was gratified to see that judge reiterated all of the things that farmers were saying about the proposed regulation during the stakeholder process.

Duff Bevill, with Bevill Vineyard Management in Sonoma, agreed with Koball, noting that the proposed regulation was much too broad, based on the isolated fish strandings of a few years ago. He said the decision "could very well affect water rights law all across California."

Al White, vineyard manager for La Ribera Vineyards in Ukiah, said the judge's ruling allows farmers "to return our energies and resources to continuing to implement the frost program that we developed in response to the issues of 2008," adding that the efforts since then "have shown that cooperation, not regulation, will achieve common goals much quicker."

Mendocino County Supervisor Carre Brown said the regulation would have imposed unnecessary costs of compliance on essentially all water diversions, despite the evidence in the record that water diversions for frost protection do not have significant, immediate effects in large parts of the Russian River system.

"The unnecessary regulation favored command and control over resource stewardship. The very high cost of compliance would have taken resources away from management activities in the Russian River Frost Program," she said.

(Steve Adler is associate editor of Ag Alert. He may be contacted at sadler@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.