Last year, the California Water Resources Control Board enacted a new regulation designed to protect migratory salmon and steelhead in the Russian River: from March 15 through May 15 each year, any diversion of water for the purpose of frost protection from the Russian River stream system, including the pumping of groundwater hydrologically connected to the system, must comply with a Board-approved Water Demand Management Program. Or more simply, vineyard owners’ regular springtime diversion of water from the Russian River to combat frost on their vines would henceforth be subject to a discretionary, conditional permit, application for which would trigger review under the California Environmental Quality Act. Unsurprisingly, several growers sued to block the regulation’s implementation, claiming that it was unconstitutionally overbroad and failed to take account of measures already voluntarily adopted by growers to protect salmonid populations.

Last week, the growers won – the first round, anyway.

On September 26, 2012, Mendocino County Superior Court Judge Ann Moorman declared the regulation unconstitutional. Judge Moorman found several, fatal flaws in the regulation. By declaring the use of water within the Russian River watershed for frost protection purposes to be per se unreasonable, the Board had exceeded its regulatory jurisdiction. Article X, section 2 of the California Constitution establishes a state policy of respect for established water rights, when such rights are exercised reasonably. The court deemed the Board’s classification of all uses of water for a given purpose as unreasonable to be overly broad and inconsistent with this constitutional mandate. Indeed, the court noted that the law clearly required the Board to make specific findings regarding water use by riparian, overlying, and pre-1914 water right holders before extinguishing their right to use water. Yet, the Board had made no such findings and instead simply enacted a blanket regulation that treated all water users the same.

The Court also found fault with the Board’s evidentiary basis for enacting the regulation. It had failed to make findings regarding individual water use and the risk it posed to salmon and steelhead, instead simply reacting to a series of salmonid strandings that occurred in one season (2008) due to unusually low water levels in the River. Judge Moorman questioned the Board’s determination that the regulation was reasonably necessary and found no substantial evidence to support that determination.

Judge Moorman invalidated the regulation – which means that, unless and until her decision is overturned, growers may divert Russian River water for frost protection consistent with their past practices and existing water rights, and without obtaining new permits. The Board now has three options: appeal the decision to the Court of Appeal in San Francisco within the next 60 days, attempt to rewrite its regulation to address the flaws identified by the court, or find a new way to address the perceived problem. Watch this space.


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