Court of Appeal Upholds State Water Board Regulation Targeting Frost-Prevention Activities of Vineyards in Mendocino and Sonoma Counties

In Light v. State Water Resources Control Board (Opinion filed 6/16/2014), California’s First Appellate District upheld a State Water Resources Control Board (SWRCB) regulation that will potentially limit the amount of water that can be diverted from the Russian River in Mendocino and Sonoma Counties during certain times of the year for frost prevention purposes. The regulation at issue, “Regulation 862,”  applies to “any diversion of water from [a portion of ] the Russian River stream system…for purposes of frost protection from March 15 through May 15.”

As characterized by the Court of Appeal, the purpose of Regulation 862 is to “protect salmonids in the Russian River stream system from stranding mortality due to sudden drops in water level during the later spring and early summer,” which, according to the SWRCB, was primarily attributable to the diversion of water by growers, vineyards in particular, during certain times of the year for use as frost protection. 

Regulation 862 calls for the formation of “water demand management programs” or “WDMPs,” which would be responsible for monitoring water levels in affected watercourses, determining when certain water levels presented a threat to young salmon, and developing “corrective actions” if water levels drop too low. Those diverting water must implement the “corrective actions,” which might include alternative methods for frost protection, construction of offstream storage, and alternative methods of diversion, or cease diverting water altogether.

Two separate petitions for writ of mandate challenging Regulation 862 were filed in Mendocino and Sacramento Counties. Those petitions were consolidated for decision in Mendocino County Superior Court which, in February 2012, issued a stay enjoining the SWRCB from enforcing Regulation 862.

The trial court invalidated Regulation 862 on the basis that:

1. the SWRCB exceeded its authority in adopting a regulation that limited the use of water by riparian users;
2. the regulation violated the “rule of priority” governing the manner in which insufficient water is divided among users (who may possess different types of water rights);
3. the regulation improperly delegated authority to the WDMPs; and
4. the declaration of necessity for adoption of the regulation was not supported by substantial evidence. The trial court also ruled that the SWRCB violated the California Environmental Quality Act (CEQA) by preparing an inadequate Environmental Impact Report (EIR).

The Appellate Court reversed the trial court’s ruling and vacated the preliminary injunction, holding that:

1. the SWRCB does have the authority to enact regulations governing the “unreasonable” use of water;
2. the SWRCB  has the authority to limit the use of water by riparian and pre-1914 appropriative rights users, even though they are not subject to the permitting and licensing authority of the SWRCB;
3. Regulation 862, on its face, did not violate the rule of priority and a determination as to whether specific measures adopted by the WDMP violate the rule of priority and whether such a violation is justified pursuant to the “reasonable and beneficial use” provisions of Article X, Section 2 of the California Constitution, would be premature;
4. Regulation 862 did not constitute an improper delegation of authority to governing bodies of the WDMPs since the SWRCB maintained independent discretion to evaluate and enforce the requirements of the WDMPs; and
5. the SWRCB’s statement of necessity justifying adopting the regulation was supported by substantial evidence. 

In an unpublished portion of the opinion, the Court of Appeal also reversed the trial court CEQA ruling, finding that the EIR prepared to evaluate potential environmental impacts of Regulation 862 satisfied CEQA’s statutory requirements. 

Absent rehearing, the deadline for filing a petition for review of the Court of Appeal’s decision with the California Supreme Court is July 28, 2014.

--Nicole Martin

For more information, contact Nicole Martin at nmm@bcltlaw.com or (415) 228-5435.