2015 California Water Law Symposium: A Recap of the Russian River Frost Protection Panel

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Derek Sagehorn
J.D. Candidate (2015), University of San Francisco School of Law
March 24, 2015

The 2015 California Water Law Symposium examined the topic of reasonable use in the 21st century. In this spirit, organizers from U.C. Hastings crafted a panel regarding the scope of the “reasonable use” doctrine and the limits of the State Water Resources Control Board’s (State Water Board) power to regulate water users. Panelists represented some of the interests involved in recent litigation regarding reasonable use, including the group that challenged the State Water Board’s regulation of water use for purposes of frost protection in the Russian River basin, the State Water Board as regulator and defendant, and the non-profit that helped advocate for such regulation.

Tony Rossman of Rossman and Moore and an adjunct professor at Berkeley Law served as moderator for the California Water Law Symposium’s fifth panel of the day titled: “The Role of Reasonable Use in Russian River Frost Protection Litigation.” Organizers from U.C. Hastings invited Brian Johnson of Trout Unlimited, David Rose of the State Water Resources Control Board Office of Chief Counsel, and Nicholas Jacobs of Somach Simmons & Dunn to offer their perspectives on the Light v. State Water Resources Control Bd. appellate decision.1 2

The Light litigation involved a facial challenge to State Water Board’s Regulation 8623 on grounds that: (1) it exceeds the State Water Board’s authority to regulate reasonable use; (2) it improperly delegates power to a local, self-interested group; and (3) the State Water Board failed to comply with the California Environmental Quality Act (CEQA). In 2013, the Mendocino County Superior Court invalidated Regulation 862, holding that the State Water Board exceeded its authority, unlawfully delegated its power, and failed to adequately analyze certain elements in its environmental impact report (EIR). On June 16, 2014, the First District Court of Appeal reversed the entirety of the trial court’s holdings. On October 1, 2014, the California Supreme Court denied a petition for review by the plaintiffs.

Tony Rossman articulated a frame for the panel’s discussion by raising two issues: (1) what is the limit of State Water Board’s authority to regulate reasonable use?4; and (2) to what extent may the State Water Board delegate that authority to local groups for the purpose of self-regulation?

Brian Johnson of Trout Unlimited explained water use as a method of vineyard frost protection and its inadvertent effect on salmonids. In late winter, as vines begin to bear vulnerable fruit, frost events tend to occur in Sonoma and Mendocino counties. Such frost events, unabated, kill budding vines, so vintners spray water on vines to prevent frost from afflicting the fruit. Vintners rely on water from the Russian River and its tributaries, diverting under riparian water rights.

The practical effect of hundreds of riparian users diverting water at approximately the same time lowered instream flows in the Russian River and its tributaries to dangerous levels for salmonids, subjecting them to stranding. In 2008, reports of fish kills led Trout Unlimited to call for solutions to this collective problem. After self-regulation talks failed, activists called for the State Water Board to act under its authority to regulate the reasonable use of riparian water right holders.

Next on the panel, David Rose of the State Water Board Office of Chief Counsel laid out the Board’s legal foundation for regulating frost protection as an unreasonable use under Regulation 862. Rose argued that the holdings of In Re Water of Hallett Creek Stream Sys.5 and Imperial Irrigation District v. State Water Resources Control Bd.6 7, among others, evince necessary authority for the State Water Board to regulate the reasonable use of riparian water right holders. In addition, Rose cited two recent cases, Young v. State Water Resources Control Bd.8, and Millview Co. Water Dist. v. State Water Resources Control Bd.9, to bolster the State Water Board’s position.  Rose further argued that People ex. rel. State Water Resources Control Bd. v. Forni10 (where the court upheld the State Water Board’s authority to enjoin the unreasonable use of riparian diversions for the purposes of frost protection) is analogous to the instant dispute. Rather than use the tool of litigation as prescribed by Forni, the State Water Board opted to create a broad rule to deal with the unreasonable use by riparian water users along the Russian River and its tributaries.

Moving onto Regulation 862, Rose argued that the delegation of State Water Board power to the local entity was integral to the practical success of the program. The expertise of local vintners in determining how to best manage diversions during frost events would be paramount in ensuring a solution to the problem. Rose went onto defend the delegation of power from the State Water Board to local growers as permitted by the People ex. rel. Lockyer v. Sun Pacific Farming Co.11

Nicholas Jacobs began his presentation by noting that his clients, the plaintiffs in the Light litigation, were not large vintners. Jacobs stated that large growers like Gallo and Kendall-Jackson declined to join the plaintiffs in litigating Regulation 862 because they: (1) could absorb the costs of the regulation; and (2) feared that they would be subject to a consumer boycott. In contrast, the small and medium-sized growers were not in a position to absorb the cost of this additional regulation, according to Jacobs.

Jacobs challenged the study that formed part of the basis for Regulation 862. He took particular issue with the methodology and assumptions used by game wardens in determining the number of fish kills in 2008. According to Jacobs, the study extrapolated the amount of fish kills found on an extremely narrow section of a tributary to the entire river system. This extrapolation was used to ascertain the amount of kills during frost events. This speculative evidence, argued Jacobs, should not be the foundation for what could be a severe economic burden upon small growers.

Addressing the State Water Board’s defense of Regulation 862, Jacobs pushed back against the reliance on Forni as a model for the State Water Board’s action based on factual distinctions between Light and Forni. In addition, Jacobs distinguished the present State Water Board action from that of Sun Pacific, noting that it was the legislature, not the State Water Board, which delegated the power to self-regulate in Sun Pacific. Jacobs warned that the court’s holding in the Light decision places the agency’s powers coincident to that of the legislature.

Finally, Jacobs warned that Regulation 862, as written, could lead to a fractured regulatory system, leaving small growers to deal with either hundreds of ineffective small groups or politically cozy large groups run by large industrialists. If diverters failed to bind together in significant numbers, the State Water Board could be overwhelmed with hundreds of small, ineffectual Water Demand Management Programs, as required by the Regulation. The alternative, according to Jacobs, would be a handful of large groups controlled by large growers. These groups could mandate onerous and expensive Water Demand Management Programs that smaller growers could not politically oppose or economically endure. Jacobs expressed a keen interest in the implementation of the programs over the next couple of years.

In the ensuing question and answer period, attendees and panelists both pondered the implementation of Regulation 862. David Rose announced that he anticipated that a substantial portion of the Sonoma and Mendocino growers have organized themselves into two groups. This assuages a fear amongst the regulators and the regulated public that the riparian water users would fail to coalesce into a manageable number of local groups. Tony Rossman also noted a possible movement, as evinced by Regulation 862 and the Sustainable Groundwater Management Act12 towards local control.

In summary, the panel provided an insider’s look into the regulatory process behind the State Water Board’s Regulation 862, the ensuing litigation challenging Regulation 862, and the issues moving forward in its implementation. The outcomes of that implementation may shed further light on the topic of “reasonable use” in California.

1 226 Cal.App.4th 1463 (2014).

2 For which Nicholas Jacobs represented plaintiffs Russian River Water Users for the Environment, Allan Nelson, Billy Munselle, Robert Terry Rosetti and Redwood Ranch and Vineyards, a group of vintners from Sonoma and Mendocino counties.

3 California Code of Regulations, Title 23, Section 862. The regulation compels local riparian water rights holders to form groups through which they could self-regulate by creating Water Demand Management Programs. These programs are submitted to the State Water Board for its approval and are aimed at limiting the adverse effects of water use for frost protection on salmonids.

4 California Constitution, Article X, Section 2.

5 44 Cal.3d 448, 471 (1988) (holding State Water Board “fully empowered” to determine the “scope, nature and priority” of federally-owned riparian rights for the purposes of fostering reasonable and beneficial use).

6 186 Cal.App.3d 1160, 1171 (1986) (upholding State Water Board’s subject matter jurisdiction over the reasonable and beneficial use violations made by pre-1914 appropriative right holders).

7 See Gregory E. Good, Administrative Adjudication of Riparian Water Rights in California After Imperial Irrigation District v. State Water Resources Control Bd. 19 Golden Gate U.L. Rev. (1989).Good examines whether the court’s holding extends to riparian users and cautiously endorses such a conclusion.

8 219 Cal.App.4th 397, 406 (2013) (holding State Water Board can make a preliminary determination of whether a diverter holds riparian or pre-1914 appropriative rights without filing a lawsuit).

9 229 Cal.App.4th 879, 894 (2014) (upholding State Water Board’s authority to issue cease and desist orders to prevent the unlawful diversions by pre-1914 appropriative water right holders, while determining validity of such a right and its scope).

10 54 Cal.App.3d 743, 752 (1976) (holding that (1) the State Water Board had authority to stop unreasonable use by riparian water users, and (2) the correct tool for such authority was litigation, not administrative adjudication).

11 77 Cal.App.4th 619, 636 (2007) (upholding the delegation of power from the legislature to local pest control district made up of growers).

12 S.B. 1168, S.B.1319, and A.B. 1739, 2013-2014 Leg., Reg. Sess. (Cal. 2014).

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