Frost Protection Diversions and Stranded Salmon — The California Court of Appeal Affirms State Water Board Reliance on Reasonable Use Law To Maintain Instream Flow

Paul Stanton Kibel*
Professor, Golden Gate University (GGU) School of Law;
Water and Natural Resource Counsel, Water and Power Law Group
June 23, 2014

In California water law these days, there is increasing talk about the reasonable use provisions of the California Constitution¹ and the California Water Code². These provisions provide that all water uses and methods of water diversion in California must be reasonable and cannot be wasteful. Due to disappointment with the effectiveness of such laws as the federal Clean Water Act and the federal Endangered Species Act in ensuring sufficient water is left for fisheries, some fishery advocates have proposed that the State Water Resources Control Board (State Water Board) rely more on California reasonable use law to maintain adequate instream flow.

In the context of proposals to look to California reasonable use law as an independent basis to maintain instream flow, the litigation over the State Water Board’s Russian River frost protection regulation has emerged as an important test case. Certain crops (such as the vineyards in Mendocino County and Sonoma County) are particularly vulnerable to frost periods that can occur in the spring. When such frost periods occur, a common response among Mendocino and Sonoma County vineyard owners is to continually mist the grapes until temperatures rise and a primary source of water for this usage is the Russian River. The problem, however, is that the Russian River also serves as a habitat for an already imperiled salmon fishery, and when all the vineyards simultaneously divert water for frost protection there may not be enough water left instream for the salmon. As a result of frost protection diversions in the April of 2008, for example, the National Marine Fisheries Services reported that some 25,000 salmon in the Russian River watershed were stranded (left without water) and died.

Against the backdrop of the April 2008 salmon stranding episode, and relying on its authority under the reasonable use provisions of the California Constitution and California Water Code, in 2011 the State Water Board adopted its Russian River frost protection regulation (Regulation 862)³. Regulation 862 required frost protection diverters of Russian River water to submit a “water demand management program”(WDMP) to the State Water Board with information about the amount of water regularly diverted from the Russian River for this purpose, the acreage and crops that received frost protection water, and alternative methods to direct diversion (such as off-river storage) for frost protection water.

The State Water Board’s 2011 Russian River frost protection regulation was challenged in litigation filed in Mendocino County Superior Court⁴. In its 2013 decision in Light v. State Water Board, Mendocino County Superior Court struck down the regulation as unlawful on two primary grounds. First, the trial court held that California reasonable use law applies only to appropriative water rights holders and not to riparian water rights holders (and petitioner Light was a riparian water rights holder). Second, the trial court held that although courts could rely on California reasonable use law on a case-by-case to bring enforcement actions for violating reasonable use standards, the State Water Board could not rely upon California reasonable use law to enact regulations applying to general categories of water usage or water diversion.

In an opinion issued on June 17, 2014, the California Court of Appeal for the First District reversed the Mendocino County Superior Court on both of the two issues noted above.⁵ In regard to the application of California reasonable use law to riparian water rights holders, the Court of Appeal held that the petitioner’s argument that riparian rights are vested rights exempt from the application of reasonable use has been “rejected repeatedly⁶” by the California Supreme Court, and that this precedent establishes that “riparian users’ vested water rights extend only to reasonable beneficial water use, which is determined at the time of use.”⁷ The June 17, 2014 opinion further clarified that the State Water Board “is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water is diverted.”⁸

In regard to the authority of the State Water Board to enact regulations to prevent unreasonable use of water, the Court of Appeal found: “In finding that the Board lacked the authority to enact [Regulation 862], the trial court recognized the Board has regulatory authority over the unreasonable use of state waters. It held, however, that this authority was limited, at least as to riparian users, to pursuing enforcement actions in the courts against allegedly unreasonable users, rather than enacting regulations to preclude unreasonable use. Neither decisional law nor the government statutes support the trial court’s limited vision of the Board’s regulatory authority.”⁹

In this vein, the Court of Appeal opinion continued: “It appears that in many, or perhaps most circumstances, diversion for frost protection purposes from the Russian River is biologically harmless. Yet on those occasions when it might be damaging, it has the potential to inflict long-lasting damage on already fragile salmon populations. Restricting the Board to post-event litigation deprives it of any effective regulatory remedy, since the damage will have been done and the critical circumstances may not arise again for months or years. It is difficult to imagine what effective relief a court could grant, other than a broad and inflexible injunction against future diversions for purposes of frost protection, a ruling that would be in the interest of neither the enjoined growers nor the public. Efficient regulation of the state’s water resources in these circumstances demands that the Board have the authority to enact tailored regulations.”¹⁰

In upholding the lawfulness of the Russian River frost protection regulation, the California Court of Appeal has established important new precedent for reliance on California reasonable use law as an independent basis for the State Water Board to adopt policies and regulations of broad applicability to reduce the adverse impacts of out-of-stream diversions on instream fisheries.

* Professor, Golden Gate University (GGU) School of Law; Water and Natural Resource Counsel, Water and Power Law Group. A version of this article was also posted on the blog for the GGU Center on Urban Environmental Law (CUEL).

¹California Constitution, Article X, Section 2.

²California Water Code, Section 275.

³California Code of Regulations, Title 23, Section 862.

⁴Mendocino County Superior Court, Case No. A138440.

⁵Opinion by Judge Margulies, Judges Dondero and Banke concurring. http:/bit.ly/1qmdIfh.

⁶Page 21, June 17, 2014 opinion of the Court of Appeal of the State of California, First Appellate District.

⁷Page 21, June 17, 2014 opinion of the Court of Appeal of the State of California, First Appellate District.

⁸Pages 14-15, June 17, 2014 opinion of the Court of Appeal of the State of California, First Appellate District.

⁹Page 14, June 17, 2014 opinion of the Court of Appeal of the State of California, First Appellate District.

¹⁰Pages 19-20, June 17, 2014 opinion of the Court of Appeal of the State of California, First Appellate District.