Appeals court frost-water ruling shocks farmers


Issue Date: June 25, 2014
By Kate Campbell
The judicious use of overhead sprinklers for protection of vulnerable grapevines as they emerge from winter dormancy has saved winegrapes from extensive frost damage in years past.

The ability to protect crops from frost damage in the Russian River watershed is increasingly uncertain in the wake of a state court of appeal decision last week. The First District Court of Appeal in San Francisco reversed a 2012 superior court ruling that found the state had overstepped its bounds in trying to impose severe restrictions on the use of sprinkler irrigation to protect vines from springtime frost.

Mendocino County Superior Court Judge Ann Moorman ruled in September 2012 that frost protection regulations imposed by the State Water Resources Control Board were invalid.

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 appealed the lower court's decision.

In its filing, the appeals court said, "Although the board has no authority to require users to obtain a permit to divert (water), there is no question it has the power to prevent riparian users and early appropriators from using water in an unreasonable manner.

"We conclude that, in regulating the unreasonable use of water, the board can weigh the use of water for certain public purposes, notably the protection of wildlife habitat, against the commercial use of water by riparian users and early appropriators. Further, the Board may exercise its regulatory powers through the enactment of regulations, as well as through the pursuit of judicial and quasi-judicial proceedings."

The heart of the legal wrangling stems from a morning in April 2008, when 10 salmonid frye were found stranded on the Russian River near Hopland. Based on this discovery, the National Marine Fisheries Service concluded that thousands of "early life stage salmonids" had been killed in the incident.

The regulations created by the water board obligated water users along the Russian River and its tributaries to develop a water demand management program that would ensure no salmonids would be stranded due to diversions for frost protection.

Originally adopted in 2011, the regulation controls the amount of water that can be taken 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 in March 2012, but in February Moorman issued a preliminary injunction delaying implementation pending the outcome of legal challenges to the regulation.

Moorman's decision was reversed by the appeals court last week.

Parties to the suit include Mendocino County farmers Rudy and Linda Light and the Russian River Water Users for the Environment group made up of farmers from Mendocino and Sonoma counties, Mendocino and Sonoma County Farm Bureaus, as well as the California Farm Bureau Federation, all of which have been engaged in this process from the beginning.

A decision to appeal to the California Supreme Court will have to be made within 40 days of the decision's filing—June 16.

"It's hard to say what the next steps will be in this situation," said Devon Jones, Mendocino County Farm Bureau executive director. "Everybody is in shock right now at the appeals court ruling. So, it's hard to figure what the implications of the decision are.

"Farmers in our county have been continuing to be proactive with agricultural water use over the last few years, with over 400 acre-feet of off-stream storage being built, improved irrigation systems being installed and starting to use the 4,000 acre-feet of tertiary treated water from the city of Ukiah," Jones said. " Even with all of this work to reduce instantaneous water demand, the frustrating thing with trying to be compliant with the regulation and develop water-demand management programs is that the fishery agencies have not provided specific scientific guidelines for flows and operating requirements. It is hard to measure the success of a program when there is a moving target.

"And, with the drought, everybody is focused on curtailment of diversions for irrigation at a critical time in the crop year," she said. "It's hard to find time to worry about frost right now, when our reservoir levels are dropping daily. However, this decision deserves attention, since it could impact water use as we know it."

CFBF Associate Counsel Jack Rice called the higher court's decision "unsettling" and said it has profound implications for water rights statewide.

"We're very disappointed by this reversal," Rice said. "This decision significantly expands the SWRCB's powers to declare a particular use unreasonable, while simultaneously reducing the procedural obligations that would need to be in place before burdens can be placed on water users. This should be a concern for water rights holders statewide, as it adds a tremendous level of uncertainty to water rights."

He said the SWRCB regulation, if implemented, will significantly impair the integrity of California water rights by using the reasonable-use doctrine to override existing water rights and restrict water use on the basis of incomplete science and anecdotes, rather than thorough analysis.

"We will be discussing an appeal with our members; that will be a first step," said Sonoma County winegrape grower Tito Sasaki, a former Sonoma County Farm Bureau president. "I've read the court's decision and I don't buy its arguments at all."

Sasaki said the next steps will be to take careful evaluation because court cases take a long time and the process is costly.

"We're anticipating that if there is an appeal, there will be a stay of the court's reversal while the appeal is pending, meaning the water board's regulations won't go into effect immediately. But, as it stands right now, access to water for frost protection won't be an issue until next spring.

"We think there are some serious issues with the appeals court's decision," he said. "The court is showing that it is willing to invalidate the state water code by approving the actions of the water board. That has implications for all water rights holders in California. It is an extremely dangerous precedent."

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

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