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Summer 2012

Frost Protection Regulation Challenged

Pumping water for frost protection is a common practice in agriculture.  Whether almonds, citrus, or vineyard early spring months has growers on frost patrol to protect their investments.  But regulations passed by the State Water Resource Control Board last year prohibits growers on 1,700 miles of river and stream in Sonoma and Mendocino counties from pumping water for frost protection from March 15th through May 15th to prevent fish stranding.

The regulation is the States response to two stranding incidents on the Russian River near Hopland and Fenlt Creek in 2008.  Through best management practices local growers have provided the state assurances how the stranding can be prevented, but the regulation was passed and became law in late 2011. The regulation was passed even though it was determined that one of the strandings was not caused by pumping for frost water and the other diversions water use has been mitigated. 

Concerns with the regulation include:

  • It requires farmers to comply with stream flow standards that are not yet known, putting users in the position to be told that their use is unreasonable.
  • It fails to determine if any diversions actually pose a threat.
  • In adopting the regulation, the board relied on vague science.
  • It ignores the priority of water rights by declaring water for frost protection to be unreasonable.
  • It does not affect other water users in the watershed, such as domestic or municipal diversions.
  • It requires diverters to collect detailed records on water diversions and stream flow stage, and provide information to the state water board for possible enforcement action.
  • It results in significant costs. The state water board estimates the regulation will cost a 160 acre vineyard up to $352,000 to comply.

Growers in the region formed the Russian River Water Users for the Environment and this group along with Rudy and Linda Light is challenging the states regulation. A Mendocino Superior County judge issued a stay on the regulation that helped growers make it through the spring of 2012 and oral augments were heard on the case on June 28, 2012.

The two parties are challenging the Water Control Board on the grounds that there is extra-record evidence in the two salmonid strandings of 2008 that led to Frost Protection Regulations under Code of Civil Procedure section 1085. Russian River Water Users argue that the new evidence makes the previous evidence for the frost regulation inadmissible. After the adoption of Procedure 1085, which requires any grower who plans to engage in frost protection from March 15 through May 15 to submit a water management plan to the state or be part of a larger water plan developed by a “governing body”.

The Plaintiffs argue that the state had from 2008 to 2011 to determine what ramping rates and water elevations were necessary to prevent salmonid standings.  Instead the state applied the regulation to 1,700 miles of river and stream as well as groundwater users in the region.  The paramount issue in this case is that the state has deemed all water diversion for frost protection in the region unreasonable.  Most of the diverters are senior water rights holders and this determination by the state is unnecessary because the issue has been mitigated.

This case is critical to all growers throughout the state.  The protection of water rights and balanced regulation is key to the sustainability of agriculture. The Judge is expected to rule on the case within 90 days.  ■

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