Cal Supreme Court Update: Water Use for Frost Protection

October 3, 2014

On October 1, 2014, the California Supreme Court denied review of a First District Court of Appeal’s ruling in Light v. State Water Resources Control Board, 226 Cal. App. 4th 1463, a case that grants broad power to the State Water Resources Control Board (the “Board”) to characterize the use of water for frost protection in the Russian River watershed as an “unreasonable use” of water, regardless of riparian rights.

Facts of the Case

In 2008, riparian farmers lawfully pumped water from the Russian River in Sonoma and Mendocino counties to use for vineyard and orchard frost protection.  Shortly afterwards, the National Marine Fisheries Service (NMFS) observed dead salmonids along the main watercourse of the Russian River. Based on this observation, NMFS determined that the farmers’ use of water for frost protection within the Russian River watershed lowered water levels and likely displaced at least 25,000 salmonids. In 2011 the Board adopted a regulation addressing diversion of water for frost protection within the Russian River watershed, codified as California Code of Regulations, title 23, section 862 (“Section 862”). Under Section 862, the Board is able to make final, binding, determinations regarding the extent and scope of riparian, pre-1914, and overlying groundwater rights, including a finding that such diversions are “unreasonable” per se.

Affected growers sued the Board challenging the validity of Section 862 and prevailed at the Superior Court level.  The First District Court of Appeal overturned the Superior Court and upheld Section 862, finding that the Board has the authority to prohibit farmers from using water in an unreasonable manner and giving the Board the power to determine whether the protection of wildlife habitat outweighs the farmers’ commercial needs. Growers filed a petition for review of the Court of Appeal decision with the California Supreme Court.  On October 1, 2014, the Supreme Court denied review of the case, which means that the Court of Appeals ruling stands.

Implications of the Case

Section 862 deprives all lawful diverters of water for frost protection in the Russian River watershed of the right to divert and use water because such diversions are deemed “unreasonable.”  Under Section 862, the Board is able to issue binding, legal, determinations that affect riparian, pre-1914 and overlying rights. In other words, it grants the Board the authority to determine that a collection of existing water uses is categorically “unreasonable” without regard to the type, location, or method of use, or the seniority of the water rights affected.

Under Section 862, the only way for right holders to utilize water for frost protection is to participate in Water Demand Management Programs (“WDMP”), which are regulated by “governing bodies” consisting of Russian River water users.  However, Section 862 makes no effort to ensure that these “governing bodies” allocate water for frost protection based on water right priority.  If senior water rights are curtailed in favor of more junior rights, it is possible (perhaps likely) that the curtailed senior rightholders will assert that a taking has occurred, triggering the requirement of just compensation under the state and federal constitutions.

Although Section 862’s immediate reach is limited to the Russian River watershed, its long-term consequences are unclear. With the possibility looming that California’s drought will continue, it is conceivable that the Board will attempt to utilize the decision in Light to characterize other water uses in other watersheds as “unreasonable” under California law.  Stay tuned.