Fall 2012

Court Overturns Frost Regulation

In a victory for wine grape and pear growers along the Russian River, a Mendocino County Judge has invalidated a regulation that severely restricted growers ability to divert water from 1,700 miles of river and stream in Sonoma and Mendocino counties.  The regulation was imposed by the State Water Resource Control Board in 2011. 

The regulation made it illegal to divert water from March 15 through May 15, which is when the crops are most vulnerable to frost damage.  It was a result of two separate salmon standing incidents that occurred in 2008.  The regulation was to go into effect in March of this year, but Judge Ann Moorman issued a stay on the regulation in February. 

There were two cases filed against the regulation in October 2011.  The plaintiffs are Rudy and Linda Light, wine grape growers in Mendocino County, and the Russian River Water Users for the Environment, a group of growers from both Sonoma and Mendocino counties.  The two cases were consolidated and were heard together. 

This regulation had huge implications on California water rights law because it considered diverting water for frost protection to be “unreasonable” under the California Constitution.  The court concluded that the State Water Resources Control Board (SWRCB) exceeded it regulatory authority in declaring water use for frost protection as unreasonable. The “reasonable use” doctrine is both a limitation and protection of water rights in California.  The regulation imposed by the SWRCB treated all water right holders the same regardless if they held riparian, pre-1914 or overlaying water rights.   The SWRCB is required to make specific findings before they can extinguish these types of senior water rights and the State failed to make a compelling case.

Plaintiffs pointed out that since 2008 the SWRCB has not studied what flows are necessary to prevent stranding from occurring. The state placed that burden on each individual diverter to determine. The growers were very accurate in describing this regulation as putting the “cart before the horse”.

Additionally, the court decision concluded the SWRCB made an overreaching regulation against frost protection diversions even thought corrective measured had be implemented to assure such an incident did not happen again.  Most importantly though the court determined that the regulation was simply unnecessary, this made the regulation unconstitutional. 

This is a clear victory for all water right holders in the State.  The growers who organized themselves deserve to be applauded for their efforts to fight back against unnecessary and burdensome regulation.  The state has 60-days to determine if they will appeal the decision  ■

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