Light v. State Water Res. Control Bd.

• Decision Date: 16 June 2014
• Docket Number: A138440
• Court: California Court of Appeals Court of Appeals
• Parties: RUDOLPH H. LIGHT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant. RUSSIAN RIVER WATER USERS FOR THE ENVIRONMENT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.

RUDOLPH H. LIGHT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.

RUSSIAN RIVER WATER USERS

FOR THE ENVIRONMENT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.

A138440

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed: June 16, 2014

CERTIFIED FOR PARTIAL PUBLICATION^*

(Mendocino County

Super. Ct. No. SC UK CVG 1159127)

In April 2008, a particularly cold month in a dry year, young salmon were found to have been fatally stranded along banks of the Russian River stream system, which drains Sonoma and Mendocino Counties. Federal scientists concluded the deaths were caused by abrupt declines in water level that occurred when water was drained from the streams and sprayed on vineyards and orchards to prevent frost damage. Following a series of hearings and the preparation of an environmental impact report, the State Water Resources Control Board (Board) adopted a regulation that is likely to require a reductionin diversion of water from the stream system for frost protection, at least under certain circumstances. The regulation itself contains no substantive regulation of water use, instead delegating the task of formulating regulatory programs to local governing bodies composed of the diverting growers themselves. The regulation declares that any water use inconsistent with the programs, once they have been formulated and approved by the Board, is unreasonable and therefore prohibited. The trial court granted a writ of mandate invalidating the regulation on several grounds. We reverse.

Foremost among plaintiffs' grounds for challenging the regulation is their contention the Board lacks the regulatory authority to limit water use by riparian users and early appropriators, whose diversion is beyond the permitting authority of the Board. Although the Board has no authority to require such users to obtain a permit to divert, there is no question it has the power to prevent riparian users and early appropriators from using water in an unreasonable manner. We conclude that, in regulating the unreasonable use of water, the Board can weigh the use of water for certain public purposes, notably the protection of wildlife habitat, against the commercial use of water by riparian users and early appropriators. Further, the Board may exercise its regulatory powers through the enactment of regulations, as well as through the pursuit of judicial and quasi-judicial proceedings. Because this is a facial challenge, our ruling is a narrow one, grounded in the general authority of the Board; we have no occasion to rule on the validity of any particular substantive regulation that might be approved by the Board in the process of implementation.

We also conclude the Board properly found the regulation to be necessary to enforce water use statutes and did not unlawfully delegate its authority by requiring local governing bodies to formulate the substantive regulations. Finally, we find no error in the Board's certification of the environmental impact report.

I. BACKGROUND

The stream system of the Russian River is home to three species of salmon classified as either threatened or endangered under the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.). The river and its tributaries, which flow to the seathrough Mendocino and Sonoma Counties, contain over 1,700 miles of potential salmon habitat. In late fall and winter, adult salmon enter the river from the ocean, swim upstream, and lay eggs in gravel on the streambed. The eggs typically hatch in late winter, and the fry emerge from the gravel after four to eight weeks and move to shallow water, typically near the margins of the stream. Here the young salmon, known as salmonids, spend several months, moving into deeper water as they mature.¹

In April 2008, when unseasonably cold weather followed an exceptionally dry winter, the National Marine Fisheries Service (Fisheries Service) discovered two episodes of fatal standings of salmonids in the mainstem Russian River and a tributary stream. "Standings" occur when salmonids in shallow areas of the watercourse are left without water or are trapped in isolated pools. There is evidence suggesting the problem is not necessarily one of low water levels per se, but of sudden decreases in water level, which allow the salmonids insufficient time or opportunity to seek the protection of deeper water. Because the salmonids spend their time in shallower water near the stream banks, they may be particularly susceptible to such sudden decreases. Extrapolating from the available limited data, the Fisheries Service reached a "coarse but conservative" estimate that some 25,000 salmonids had been killed throughout the stream system in the April 2008 events.

The Fisheries Service blamed the standings, in large part, on agriculturalists, especially grape growers, located along the system. The watershed of the Russian River is home to over 60,000 acres of vineyards, of which 70 percent are within 300 feet of salmonid habitat. Grape plants are particularly susceptible to frost damage when new growth appears in the spring. The newly emerged vegetation is delicate, and a tissue-killing freeze can result in substantial crop loss. A time-tested method of preventing frost damage is to spray the new growth with water, which by freezing on the plants insulates them against the colder air. If a number of growers anticipating a frost all draw theirwater directly from a stream at the same time, the net effect can be a sudden decrease in the volume of flowing water. The problem occurs both because the growers' diversion of water is effectively synchronized—all growers in a threatened area must frost-protect at the same time—and because the overhead sprayers necessary for frost protection consume relatively large quantities of water. Examining data for March through May 2008, the Fisheries Service found an association between near-freezing air temperatures and sudden and substantial drops in the flow of a stream in the system.²

In a letter, the Fisheries Service urged the Board to undertake regulatory activity to reduce the risk of frost protection-related salmonid deaths. Although the Fisheries Service pointed the finger at growers, other factors were potentially involved. Most obviously, the affected area of the stream system is downriver of two large reservoir lakes created by the Coyote and Warm Springs Dams. The pace of water release from these dams directly affects the level of water in the system. Following the discovery of the stranding deaths, the agency responsible for controlling the release of water from the dams, the Sonoma County Water Agency (SCWA), experimented with anticipatory releases of water to counteract the effects of frost protection diversion. The SCWA concluded such releases were impractical, given the long time, up to 14 hours, necessary for the released water to reach the more distant portions of the stream system and the difficulty in predicting frost events, which gave rise at times to wasteful "false alarm" releases. In addition, the coordinated nature of the frost protection diversions made it difficult to counteract their impact. The SCWA told the Board additional anticipatory releases would be ineffective in preventing the sudden drawdowns.

On the other hand, while protecting sensitive crops from frost is of critical commercial importance, the practice can be managed to reduce the immediate demand onstream flows. Growers can minimize their use of sprayed water by precisely targeting truly threatened acreage, and better frost forecasting and temperature monitoring can avoid unnecessary sprayings. Many growers have constructed basins to collect water at times of high stream flow. Drawing water from such basins or from wells, rather than directly from the stream system, serves the same frost protection purpose without an immediate impact on stream flow. In addition, there are alternative methods, such as wind machines, heaters, and cold air drains, that will work under certain circumstances to protect against frost damage.

Following the 2008 discovery of salmonid deaths, the Fisheries Service formed a task force and attempted to organize voluntary efforts to reduce the impact of frost protection on the stream system. While it praised the efforts of participating growers, the Fisheries Service eventually concluded the problem could not be managed through voluntary efforts. The submitted proposals for voluntary action generally did not address diversion in the tributary streams of the river, where the problem was most acute, and the inability to compel the compliance of all growers with a voluntary plan made success unlikely. Based on the Fisheries Service's experience, the Board concluded voluntary efforts would not solve the problem.

Following a series of public hearings and the preparation of an environmental impact report, in September 2011 the Board adopted a regulation addressing diversion for frost protection, codified as California Code of Regulations, title 23, section 862 (hereafter Regulation 862). Regulation 862 applies to "any diversion of water from the Russian River stream system . . . for purposes of frost protection from March 15 through May 15."³ (Regulation 862, subd. (a).) The section contains no substantive regulation of water diversion for the purpose of frost protection, instead delegating the development ofsuch regulation to "water demand management program[s]" (WDMP's). Regulation 862 is silent as to how and by whom the WDMP's are to be developed, but they must be administered by "an individual or governing body . . . capable of ensuring that the requirements of the program are met." (Id., subd. (b).) The parties reasonably assume the WDMP's will be created by self-organized groups of agricultural diverters, who will act as the "governing bodies." Each WDMP must be...